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HARVARD 
HISTORICAL STUDIES 



PUBLISHED UNDER THE DIRECTION OF THE DEPARTMENT OF 
HISTORY AND GOVERNMENT FROM THE INCOME OF 



%X\t $$zmy Wt&vtm Corte? ^itna 




Volume VII. 






% 






The Provincial Governor 



IN 



THE ENGLISH COLONIES OF 
NORTH AMERICA 



BY 



EVARTS BOUTELL GREENE 

PROFESSOR OF HISTORY IN THE UNIVERSITY OF ILLINOIS 
SOMETIME HARRIS FELLOW OF HARVARD UNIVERSITY 



NEW YORK 
LONGMANS, GREEN, AND CO. 

LONDON AND BOMBAY 
1898 



\ 






.G-s 



Copyright, 1898, 
By the President and Fellows of Harvard College, 



""iECEIVEfr 



NOV 7 -1898 ) 



' s *er of Co 



vV 



. ■ , 



1st COPY* »D%0 ©<& 

1 393. ,o i—-^ _ _ 

University Press: 
John Wilson and Son, Cambridge, U.S.A. 



PREFACE. 



This essay was in its original form presented as a 
dissertation for the degree of Doctor of Philosophy in 
Harvard University. It has since been revised and in 
considerable part rewritten. Though in the process of 
revision many errors of fact and errors of judgment have 
been corrected, there are doubtless many which have 
escaped the author's notice, and which remain to be 
pointed out by others. It is hoped, however, that the 
conclusions here set forth may at least serve to provoke 
discussion and investigation in a comparatively unworked 
and exceedingly important field of research. 

The title and scope of the work require some expla- 
nation. The term Provincial Governor has been chosen 
to designate the chief executive of the royal and proprie- 
tary colonies. As will be subsequently explained, the 
internal constitution of the proprietary colony became 
so nearly like that of the royal province that the two 
may with advantage be treated together. In the pro- 
prietary and in the royal governor alike we have the 
representative of an externally imposed authority. The 
elective governors of Rhode Island and Connecticut 
stood upon an essentially different footing, and do not 



vi PREFACE. 

therefore come within the scope of this work. Two 
other important limitations must be noted. After a 
brief introduction on the beginnings of constitutional 
development, the field is restricted, in the main, to the 
period between the Revolution of 1688 and the close of 
the last French war ; excluding, therefore, the complica- 
tions of the revolutionary era, and presenting a simple 
view of the normal working of the provincial constitu- 
tion. The field of study is further restricted to those 
colonies which afterwards became a part of the United 
States of America, though occasional illustrations have 
been drawn from the practice of other British provinces. 

In the appendices are included, first, a few represent- 
ative commissions and sets of instructions ; secondly, a 
list of printed commissions and instructions to royal 
and proprietary governors; and, finally, a list of author- 
ities cited. In citing any provision of the commissions 
or instructions, the reference in the footnote is to the 
particular section or page where that provision occurs. 
The place in which the document is printed may then 
be found by reference to Appendix B. The commission 
and instructions to Francis Bernard, which are given in 
Appendix A, have, so far as possible, been cited in the 
discussion of particular powers and duties assigned to 
the governor. In this way many statements made in 
the text may be conveniently checked by reference to the 
documentary material in the appendix. 

It is impossible to express adequately the author's 
indebtedness to all those who have aided in the suc- 
cessive stages of this work, and to whom such measure 



PREFACE. vii 

of success as may have been attained is very largely 
due. The officers of the Harvard University Library 
have done much by their courtesy and liberal extension 
of privileges to facilitate both the original labor of in- 
vestigation and the subsequent task of verification and 
revision. Special acknowledgments are due to Mr. 
Philip A. Bruce of the Virginia Magazine of History 
and Biography, Dr. Alexander Brown, and Messrs. 
Houghton, Miffiin and Company for permission to print 
documents included in Appendix A ; and also to Miss 
Addie F. Rowe, of Cambridge, for conscientious and 
intelligent service in preparing the manuscript for the 
press. 

The author desires finally to express his deep sense of 
obligation to his teachers and friends in the historical 
department of Harvard University — especially to Pro- 
fessor Edward Channing, under whose guidance the 
work has been carried on, and Professor Albert Bushnell 
Hart, to whom he has been indebted throughout for 
kindly criticism and encouragement. 

EVARTS B. GREENE. 

URBANA, September, 1898. 



CONTENTS. 



CHAPTER I. 

Page ^ 
The Evolution of the Provincial Government i 

CHAPTER II. 
The Evolution of the Provincial ExECimvE 23 

CHAPTER III. 
The Governor's Appointment, Tenure of Office, and Emol- 
uments 46 

CHAPTER IV. 

The Governor as the Agent of the Home Government . . 65 

CHAPTER V. 
The Governor's Council 72 

CHAPTER VI. 
The Governor's Executive Powers 91 ; 

CHAPTER VII. 
The Governor's Relation to the Judiciary 133 ' 

CHAPTER VIII. 
The Governor's Power over the Assembly 145 

CHAPTER IX. 
The Power of the Assembly over the Governor . . . . 166 



x CONTENTS. 

CHAPTER X. 

Page 

The Encroachments of the Assembly upon the Executive . 177 

CHAPTER XL 

The Governor's Legal and Political Accountability . . . 196 

Conclusion 202 

APPENDICES. 

A. Representative Commissions and Instructions: — 

1. Commission to Sir Thomas West, Lord La Warr, as 

Governor of Virginia, 16 10 207 

2. Commission to Sir William Berkeley as Governor of 

Virginia, 1641 214 

3. Instructions to Sir William Berkeley as Governor of 

Virginia [1641] 219 

4. Commission to Francis Bernard as Governor of New 

Jersey, 1758 [Draft] 226 

5. Instructions to Francis Bernard as Governor of New 

Jersey, 1758 [Draft] 234 

6. Commission to James Hamilton as Proprietary Gov- 

ernor of Pennsylvania, 1759 261 

7. Commission to John Wentworth as Lieutenant-Governor 

of New Hampshire, 1 7 1 7 . . 264 

B. List of Printed Commissions and Instructions to Royal 

and Proprietary Governors 265 

C. Authorities Cited ...271 

INDEX 279 



THE PROVINCIAL GOVERNOR. 



CHAPTER I. 

THE EVOLUTION OF THE PROVINCIAL GOVERNMENT. 

In 1763 the royal government was the predominant type in 
the English colonies which were later to become the United 
States of America. Of the twelve colonial governments, 1 
eight belonged to the class of royal or provincial governments, 
two were proprietary governments, and two were chartered 
colonies with elective governors. This condition was, how- 
ever, the result of very gradual development, inasmuch as the 
policy of direct control by the crown was finally adopted only 
after a long period, during which it was the rule to intrust the 
government, as well as the soil of the colonies, to proprietors 
or colonizing companies. In no colony was the system of 
royal government continuous from the beginning. So, too, 
the form and the powers of the colonial executive were not 
fixed from the start, but were adopted after various experiments 
with other forms, and were the result of a gradual limitation 
of powers at first vague and undefined. The first question to 
be considered, then, is as to the steps by which the royal gov- 
ernment took shape and became the prevailing form in the 
colonies. 

For the earliest indications of royal policy in regard to the 
government of the colonies, it is necessary to go back to the 
sixteenth century. In the patent granted to Sir Humphrey 
Gilbert, in 1578, the right of government was given to the 
proprietor substantially without limitation as to internal 

1 Counting Delaware with Pennsylvania as a single government. These 
two colonies had separate legislatures, but a common executive. 

1 



2 EVOLUTION OF THE PROVINCIAL GOVERNMENT. 

affairs. 1 In 1584, Sir Walter Raleigh received a charter con- 
ferring similar rights, under which the colony on Roanoke 
Island was organized. 2 In each of these cases, the govern- 
ment of the colony was left in the hands of the patentee. 

The first permanent English colony was that of Virginia, 
founded in 1607. 3 Here the king at first retained considerable 
control. The charter to the Virginia Company provided that 
the governing council in England should be named by the 
crown, and reserved to the king the right of making from time 
to time such regulations as he saw fit for the government of 
the colony. In the exercise of this reserved right, the king 
issued in the same year a set of " Articles, Instructions, and 
Orders " for the government of Virginia, providing for a resi- 
dent council which was to be appointed by the superior council 
at home. 4 By the second charter, however, the king resigned 
these important rights, leaving the governing council to be 
elected thenceforth by the company, which was now left quite 
free in the organization of the government in Virginia. 5 

The period of independence was, however, of short duration. 
In various ways, which need not be recited in detail here, the 
company incurred the ill-will of the king, a calamity which 
was rendered still more serious by internal dissensions. The 
dissentients soon caused serious charges of mismanagement to 
be brought against the company. It is true that these were 
squarely met, and that the people of the colony, far from join- 
ing in the attack, as it was hoped that they might do, declared 
in favor of the existing government. 6 Still, the case was pre- 
judged. In July, 1623, the attorney-general was directed to 
inquire whether the conduct of the Virginia Company did not 
furnish ground for annulling the charter, and, as might have 

1 Hazard, Historical Collections, i. 24. 2 Ibid., 33. 

8 Charter in Poore, Charters and Constitutions, ii. 1 890. 

4 Alexander Brown, Genesis of the United States, i. 65. 

5 Charter of 1609 in Poore, Charters and Constitutions, ii. 1893 seq. 

6 Sainsbury, Calendar of State Paper's, Colonial Series, America and 
West Indies, 1 574-1 660, pp. 22, 24, 44, 59, 63, 65 ; Proceedings of the Vir- 
ginia Company (Virginia Historical Society, Collections, New Series, vii .- 
viii.), i. 63, 77 seq., ii. 146 ; Stith, History of Virginia (1865), 304 ; Chalmers, 
Political Annals, 64. 



ROYAL GOVERNMENT IN VIRGINIA. 3 

been expected, the royal law officers gave the opinion desired 
by the crown. 1 The king then proposed a considerable modi- 
fication of the old charter, but the company refused to make 
the concession ; whereupon a writ of quo warranto was issued 
against the company, and in 1624 the charter was annulled. 2 

The policy of direct control by the crown was now announced. 
In August, 1624, King James formally assumed authority by 
the issue of a special commission to Sir Francis Wyatt and 
others as the " governor and council " of Virginia. 3 In the 
following year Charles I. came to the throne, and immedi- 
ately issued a proclamation declaring his intention of main- 
taining a direct royal government, a declaration which was 
soon followed by a commission for the government of Virginia 
by a royal governor and council. 4 Efforts to secure a renewal 
of the charter were made without success. As late as 1642 
the governor, council, and assembly found it necessary to dis- 
avow a petition presented in their names praying for the 
restoration of the old government ; 5 and the king took the 
occasion to declare emphatically his adherence to the principle 
of direct royal control. If the brief revolutionary period of the 
commonwealth be excepted, royal government in Virginia was 
now permanently established. 

Elsewhere, however, direct control by the crown was not to 
come for half a century. 6 The charter of 1606, which organ- 
ized the London Company for Virginia, created also the 
Plymouth Company, which in 1620 was reorganized as the 
11 Council for New England, " with rights of government over 
the territory granted by the charter. 7 This latter corporation, 

1 Sainsbury, as above, pp. 48, 51. 

2 Ibid., 52-54, 63; Stith, History of Virginia, 304 seq. 

3 Rymer, Fcedera, xvii. 618. 

4 Proclamation for settling Virginia, in Chalmers, Political Annals, 126 ; 
Rymer, Fcedera, xviii. 72. Commission in Rymer, Fcedera, xviii. 311 ; cf. 
Chalmers, Political Annals, 111-112. 

5 Sainsbury, Calendar of State Papers, Colonial Series, America and 
West Indies, 1 574-1660, pp. 171, 324. 

6 If we except the provisional royal government in Maine (1665-1668). 
See Winsor, Narrative and Critical History, i. 324. 

7 Hazard, Historical Collections, i. 103. 



4 EVOLUTION OF THE PROVINCIAL GOVERNMENT. 

however, lasted only fifteen years, surrendering its patent to 
the crown in 1635. The Council for New England soon 
granted large portions of their territory to individuals or to 
groups of individuals, and in some cases the proprietors 
of these sections succeeded in securing from the crown 
rights of government over the territory thus acquired. 1 Two 
of these grants — that of 162 1 to the Plymouth Colony, 
and that of 1629 to the Massachusetts Bay Company — re- 
sulted in the formation of more or less permanent political 
establishments. 2 

The charter of the Massachusetts Bay Company created an 
organization which was in form very much like that estab- 
lished by the charters to the Virginia Company in 1609 and 
1612. 3 By its provisions the governor and company were em- 
powered to make all necessary rules for the administration of 
the colony, and to govern either directly or by a resident gov- 
ernor of their appointment. On the face of the document, the 
government here, like that in Virginia, seemed to rest in the 
hands # of a commercial company in England; and for a short 
time precisely this state of things did exist. In April, 1629, 
at a meeting in London, the company voted to establish " an 
absolute government at our plantation," and in accordance 
with this resolution chose John Endicott as governor and seven 
others as councillors. For the time being, this governor with 
his council was invested with full powers of administration 
in the colony. 4 The charter of the Massachusetts Bay Com- 
pany, however, contained no clause restricting the seat of 
government of Massachusetts to England. Advantage was 
taken of this omission to transplant the principal seat of gov- 
ernment to the colony. In this way the settlers of Massa- 
chusetts, instead of being ruled by a corporation across the 

1 Winsor, Narrative and Critical History, iii. 295-310 ; Hutchinson, 
History of Massachusetts, i. 13; Poore, Charters and Constitutions^ i. 774, 
ii. 1 270-1 273. 

a Massachusetts Historical Society, Collections, 4th Series, ii. 156; 
Hazard, Historical Collections, i. 298 (patent of 1630). 

8 See Poore, Charters and Constitutions, i. 932. 

4 Records of Massachusetts Bay, i. 361. 



NEW ENGLAND ELECTIVE GOVERNMENTS. 5 

water, became a self-governing community, and the governor 
came to be, not an externally imposed ruler, but the agent of 
the voters. Already in Plymouth a self-governing colony had 
grown up independently of any royal sanction; and these 
republican models were followed in the younger colonies of 
New England. Rhode Island and Providence Plantations, 
Connecticut and New Haven, existed for years without any 
legal recognition. 1 After the Restoration, however, the con- 
solidated governments of Connecticut and Rhode Island re- 
spectively received charters securing them in the possession 
of their local liberties. 

There were, then, in New England in 1663, after the issue 
of the Connecticut and Rhode Island charters, three elective 
governments protected by royal charters, — namely, Massachu- 
setts, Rhode Island, and Connecticut. Plymouth had no such 
security, but she had not as yet been disturbed. The royal 
form had not at that time a foothold in New England. The 
commission issued by the parliamentary council to Codding- 
ton in 1650 for the government of Rhode Island was, it 
is true, an interesting anticipation of the future policy of 
direct control by the crown; 2 but Coddington's attempt to 
enforce his claims had proved a complete failure. 

In the southern and middle colonies, founded during the 
Stuart reigns, the policy of direct control which the crown 
seemed to have announced by its action in Virginia was 
apparently abandoned. In 1632 came the charter of Maryland; 
in 1663, the grant to the proprietors of the Carolinas. In 
1664, by the grant to the Duke of York, the conquest from 
the Dutch, New Netherland, passed irito the hands of a private 

1 For Rhode Island, however, see the parliamentary patent of 1644, 
Rhode Island Records, i. 143. In New Hampshire the proprietors were not 
strong enough or energetic enough to enforce their claims. At Portsmouth, 
Exeter, and Dover little independent communities grew up, each with its 
elected governor or "ruler" at its head, and maintained their positions 
during the short period which elapsed before their absorption by Massachu- 
setts. See New Hampshire Provi7icial Papers, i. 110, III, 119, 132-134, 
142, 144; Belknap, History of New Hainpshire, ch. ii. 

2 Sainsbury, Calendar of State Papers, Colonial Series, America and 
West Indies, 1 574-1660, p. 354. 



6 EVOLUTION OF THE PROVINCIAL GOVERNMENT. 

proprietor; 1 and by the Duke's releases of the same year the 
Jerseys passed into the hands of Berkeley and Carteret. 2 In 
1681, on the security of a royal charter, William Penn founded 
the proprietary colony of Pennsylvania, though the crown re- 
served the right to declare void, within six months after their 
delivery in England, legislative acts of the colony inconsistent 
with the supreme allegiance due to the crown, and reserved also 
the right to take appeals from judgments given in the province. 3 

Until the year 1685, royal governments had been estab- 
lished in but two colonies. In Virginia the crown maintained 
its control until 1652. The colony was then left largely to 
itself, having for a few years an elective government. In 
this period the governor and council were chosen by the as- 
sembly, which had become the real source of authority within 
the colony. 4 At the Restoration, however, the old order was 
re-established without a struggle, and from that time to the 
War of Independence Virginia had a regular succession of 
royal governors. The second royal government was estab- 
lished.in New Hampshire by a commission to John Cutts and 
others as the " president and council " of the province of New 
Hampshire, which went into effect in 1680. 5 

In this brief sketch two general classes of colonial govern- 
ments which were not under the direct control of the crown 
have been distinguished. First, there was the proprietary 
form, in which the governor was nominated by a single man 
or by a group of men, usually resident in England, who had 
financial interests in the colony. Such was the government 
of Virginia before the revocation of its charter in 1624, and 
such were the later governments of Maryland, the Carolinas, 
and Pennsylvania. In the second place, there was the elective 
form, sometimes springing up independently, as in Plymouth, 
Rhode Island, Providence, Connecticut, and New Haven; and 
sometimes secured by royal charter, as was the case in Massa- 

• 

1 All these charters are to be found in Poore, Charters and Constitutions. 

2 New Jersey Documents, i. 8, 10. 

3 Charter in Poore, Charters and Constitutions, ii. 1509. 

4 Documents in Hening, Statutes, i. 369 seq., and Appendix. 

5 Commission in New Hampshire Provincial Papers ^ i. 373. 



ELECTIVE GOVERNMENT IN NEW JERSEY 7 

chusetts and in the later consolidated governments of Connect- 
icut and Rhode Island. 

In a rough way, the line of division was geographical. The 
proprietary form never took root in New England, though it 
played an important part in the colonization of the southern 
and middle States. The elective form, on the other hand, 
which held the field in New England during the first half- 
century of colonization, was never firmly established else- 
where, though there were a few interesting experiments with 
popular government in other colonies. Thus in Virginia dur- 
ing the commonwealth period there was, as has been seen, a 
practically independent elective government. 1 Some tendency 
toward a more popular form of administration also appears in 
the early history of the Carolinas; 2 but by far the most in- 
teresting example of elective governments outside of New 
England is to be found in the history of West Jersey. 

In 1676 the province of New Jersey w T as divided into two 
parts. East Jersey went to Sir George Carteret, and West 
Jersey to William Penn and others in trust for one Edward 
Byllinge, who had acquired the rights of John, Lord Berkeley, 
one of the two original proprietors. 3 In the following year 

1 The House of Burgesses declared, in 1658, that the governing power 
resided in such persons "as shall be impowered by the Burgesses (the repre- 
sentatives of the people) : " Hening, Statutes, i. 499-504. 

2 In 1663 the proprietors of the Carolinas received proposals from cer- 
tain gentlemen of Barbadoes, who wished to colonize in Carolina on the 
condition that they might elect their own governors and make their own 
laws. At about the same time the Cape Fear Company, formed for the 
purpose of sending settlers to Carolina, wrote to the proprietors, declaring 
that, as the English in New England had enjoyed the privilege of electing 
their own governors, it would be difficult to attract them elsewhere unless 
the same privileges were granted {North Carolina Records, i. 36, 39 ; Hawks, 
History of North Carolina, ii. 23). These representations seem to have 
had some influence upon the proprietors ; for in the same year they issued 
proposals promising to appoint the governor and council from a list of 
thirteen named by the planters (see " Proposealls to all y 1 will plant in 
Carrolina," in Rivers, Sketch of the History of South Carolina, 335). These 
schemes, however, never went into operation, and the governors were from 
the start named by the proprietors. 

8 New Jersey Documents, i. 205. 



8 EVOLUTION OF THE PROVINCIAL GOVERNMENT. 

the new Quaker proprietors and freeholders issued the so- 
called " Concessions " of West Jersey, by which all the powers 
of government were vested in the assembly and a body of 
elected commissioners. 1 In spite of these provisions, the pro- 
prietor, Edward Byllinge, sent out as his deputy-governor 
one Samuel Jennings ; whereupon the assembly drew up a new 
set of "Fundamentals," on the acceptance of which by the new 
governor it agreed "to accept and receive him" as deputy- 
governor. 2 From 1683 to 1685 there were annual elections. 
In 1685, however, the assembly, "reserving their just rights 
and privileges," acknowledged the authority of the proprietor's 
deputy, John Skene, and the brief line of elective governors 
came to an end. 3 

Of these two classes of governments not under the direct 
control of the crown, the elective government lies beyond the 
scope of this work. The proprietary form, on the other hand, 
approaches so nearly the prevailing type of royal government 
that ttfe two groups may for most purposes be classed to- 
gether. It will, therefore, be enough here to note briefly 
the peculiar features of the proprietary system, those charac- 
teristics that distinguish the proprietary governor from his 
neighbor in the royal province. 

In order to understand the position of the proprietary gov- 
ernor, that of the proprietor himself as set forth in the pro- 
prietary charter must first be considered. The charter to 
Lord Baltimore in 1632 granted the territory of Maryland, 
with all the rights, privileges, and immunities within that 
territory which were enjoyed by the Bishop of Durham within 
the bishopric or county palatine of Durham. Lord Baltimore 
and his heirs were to hold this palatinate as "true and 
absolute lords and proprietaries . . . saving always the faith 
and allegiance and sovereign dominion" due to the crown. 
The land was to be held in free and common socage, and not 

1 New Jersey Documents, i. 241 . 

2 Smith, History of New Jersey, 126-129; Learning and Spicer, Grants, 
Concessions^ etc., 423. 

8 Smith, History of New Jersey, 155, 190; Learning and Spicer, Grants, 
Concessions, etc., 471, 490, 499, 503. 



PROPRIETARY CHARTERS. 9 

by knight's service. As the expression of his vassal relation 
to the crown, the proprietor was to make an annual payment 
of two Indian arrows and one fifth of the gold and silver found 
within the colony. 1 Similar language is to be found in the 
Carolina charter. 2 In spite of the exemption from knight's 
service, the whole phraseology carries us back to the days of 
feudal society. The principle implied is distinctly feudal, 
namely, the association of rights in the soil with rights of 
government; that is, the king parts with a portion of his 
prerogative, and exempts this particular piece of territory 
from the ordinary jurisdiction, very much as his predecessors 
had done when they created the palatinates of Lancaster and 
Durham. 

In the proprietary charters of New York and Pennsylvania, 
the powers granted to the proprietor were subject to some 
important limitations. In New York the crown had reserved 
to itself the right to receive appeals from any judgments given 
in the province. 3 In Pennsylvania there was the additional 
requirement that all acts passed by the proprietor and the 
freemen should be subject to the royal veto for a limited time 
after their transmission to the crown. 4 In these charters there 
is no reference to the English palatinate as the measure of 
the proprietor's powers, but the main principle is the same as 
in the Maryland and Carolina charters. In each case were 
created private jurisdictions exempt wholly or in part from 
the ordinary operation of the royal sovereignty. The proprie- 
tary governor was, in a sense, not even a public officer at all, 
but the agent of a private person or group of persons, intrusted, 
it is true, with the powers and duties of an officer of State, but 
charged also with the defence and promotion of distinctly 
private interests. He had at the start scarcely any organic 
connection with the royal governmental system. 

This is, in essence, the difference between the proprietary 

1 Charter translated in Bozman, History of Maryland, ii. 9. 

2 Carolina charters of 1663 and 1665 in Poore, Charters and Constitu- 
tions, ii. 1382, 1390. 

8 Grant to the Duke of York, Ibid., i. 783. 

4 Charter to William Penn, 1681, Ibid., ii. 1509. 



IO EVOLUTION OF THE PROVINCIAL GOVERNMENT. 

governor and the royal governor. Individual governments 
might have special peculiarities, but the only essential point 
of difference between the two classes as a whole lay in the 
fact that in the one the governor received his authority from a 
quasi-feudal dignitary or body of proprietors while m the 
other he received his authority directly from the crown, 
form of his office and the extent of his powers were not neces- 
sarily altered by a change from the one relation to the other. 

As a matter of fact, however, the proprietary governments 
exhibit greater varieties in form than the royal governments, 
inasmuch as the ownership of a colony offered peculiar oppor- 
tunities for political experiment. The extent of these experi- 
ments varied. There were not many of them in Maryland and 
New York, though in the former colony some steps were taken 
in the direction of a partly feudal organization. In the Caro- 
linas, the Jerseys, and in Pennsylvania, however, there were 
striking instances of this kind of political experiment ; indeed 
each of these colonies had an abundant crop of original, if not 
workable, constitutions. In the Carolinas there were, first 
the tentative propositions of 1663 looking toward a system of 
popular government ;i then the "Concessions" of 1665, which 
reserved to the proprietors the appointment of the executive, 
but gave to the assembly an unusual degree of control; and, 
finally, the various editions of the « Fundamental Constitutions 
from 1669 to 1698, with their cumbrous machinery and formid- 
able terminology; their "Palatine's Court," Grand Council 
"Parliament," aristocratic upper house, "landgraves, and 
" caciques " 3 Two of the Carolina proprietors were also pro- 
prietors of the Jerseys, where the same tendencies appeared in 
a similar set of " Concessions." * In this case, the division of 
the province between two new sets of proprietors gave rise ,o 
another set of fundamental documents. From the West Jersey 
proprietors came the " Concessions " of West Jersey, modifiec 

1 North Carolina Records, i. 43. 

3 foor^cTarters and Constitutions, ii. i 3 97 5 The Two Charters grantee 
by King Charles IL, etc. 

4 Issued in 1665. See New Jersey Documents, 1. 28. 



DEFECTS OF THE PROPRIETARY SYSTEM. II 

by the " Fundamentals " of the West Jersey assembly, while 
in the eastern division there was another elaborate paper 
constitution. 

The peculiar tendency toward the making of elaborate con- 
stitutional documents, shown in the West Jersey " Concessions " 
of William Penn and his Quaker associates, appears again in 
the various frames of government set up in Pennsylvania. In 
the intricate constitutional mechanism of Penn's first "Frame 
of Government" for Pennsylvania, we have a fair counterpart 
of the " Fundamental Constitutions " of Carolina. In all these 
colonies the elaborate machinery passed away, the paper con- 
stitutions died an early and natural death, but the popular 
tendencies embodied in some of the early documents left their 
impress on the later constitutional development. 

The defects of the proprietary system are not hard to see. 
The first of these was inherent in the union of the two char- 
acters of governor and private proprietor. The proprietor had 
great landed interests in the colony: he was the landlord, 
whose financial interests often clashed with those of his 
tenants. Out of this situation arose the interminable quit- 
rent controversies, and later the question as to the taxation of 
proprietary lands, which proved so serious an element of con- 
flict in Pennsylvania and Maryland. 1 The quit-rent troubles 
were not, it is true, confined to the proprietary colonies. The 
crown, like the proprietor, had financial interests at variance 
with those of the colonists, and the royal governor, like the 
proprietary governor, was bound to become the defender of 
these interests against the assembly. In the proprietary 
colonies, however, such conflicts were embittered by a feeling 
that the strife was obviously one between public and private 
interests. Then, too, many of the proprietors had undertaken 
these enterprises as distinctly commercial investments, con- 
sidering that their right of government was only incidental to 
their general right of property, and, like that, was to be worked 
to its full value. Consequently there was a tendency to dis- 
pose of colonial offices as purely private property. In Penn- 
sylvania this course was checked by limiting closely the power 

1 See below, p. 13. 



12 EVOLUTION OF THE PROVINCIAL GOVERNMENT. 

of appointment ; 2 but in Maryland there seems to have been a 
regular traffic in minor colonial offices nominally in the gift 
of the governor. This practice was perhaps at its height in 
the time of Governor Sharpe, during the French and Indian 
war. Many appointments were practically taken out of his 
hands; and offices were sold on peculiar terms, by which the 
proprietor's relatives and friends received a certain share of 
the profits. 2 

It would, of course, be unjust to imply that all of the pro- 
prietors were influenced by improper motives. The last days 
of the Virginia Company, the attitude of Penn toward his 
colony, and the history of Maryland under some of the earlier 
proprietors furnish conclusive evidence that the possession 
of proprietary rights and a reasonable desire to protect them 
were not necessarily inconsistent with some regard for the 
interests of the colonists. Nevertheless, the proprietors were 
exposed to peculiar temptations, and the system was one which 
could work well only under the most favorable conditions. 

As the home government came to exercise a closer super- 
vision over the colonies, especially after the development of 
parliamentary control through the navigation acts, a second ele- 
ment of difficulty was introduced, namely, the conflict between 
royal and proprietary interests. In Pennsylvania, Maryland, 
the Carolinas, and the Jerseys, there was often friction between 
the proprietary governors and the royal revenue and admiralty 
officers, 3 — such, for example, as that which arose in 1681 in 
Maryland, where Lord Baltimore was charged with obstruct- 
ing the collection of the royal customs, a quarrel which ended 
in the killing of one of the royal officers. 4 Edward Randolph, 
the most persistent upholder of the British customs laws, as- 
serted in strong terms that the proprietary governments were 
particularly remiss in the enforcement of the navigation laws. 5 

1 See speech of Hamilton in Proud, History of Pennsylvania, ii. 217- 
218. 

2 Sharpe's Correspondence, Maryland Archives, vi. 354, ix. 39-40. 

8 Randolph's memorial, 1696, New Jersey Documents, ii. 116 seq. Ct. 
Randolph's letter of 1701, Ibid., 358 seq. 

4 Maryland Archives, v. 274, 286, 305, 428 seq. 
6 Randolph's memorial, as above. 



ROYAL AND PROPRIETARY INTERESTS OPPOSED. 1 3 

A still more serious conflict of interests occurred during the 
period of the French and Indian wars of the eighteenth century. 
The assemblies were, of course, frequently called upon for 
supplies; and when, as in Pennsylvania and Maryland, they 
passed supply bills which included taxes on the estates of the 
proprietors, the refusal of the latter to permit such taxes led 
to prolonged and angry deadlocks. 1 At such times the posi- 
tion of the proprietary governor was peculiarly difficult, com- 
pelled, as he often was, to choose between his duty to the 
crown and his obligations to the proprietor. The royal gov- 
ernor, it is true, was frequently called upon to choose between 
a refusal of supplies by the assembly and disobedience to his 
instructions; but the proprietary governor was hampered by 
an additional set of instructions based, not on constitutional 
and political grounds, but often on purely selfish interests. 
How energetic men chafed under such restraints, and how the 
public interests often suffered, is well illustrated in the corre- 
spondence of Governor Sharpe of Maryland. In 1756, in the 
crisis of the conflict with the French, he wrote impatiently: 
"If my hands had not been tied up by such Instructions as 
empty Coffers seem to have dictated I should many Months 
ago have had a Regiment of Maryland Troops under my Com- 
mand & in all probability have been enabled to prevent any 
Incursions of Indians into this Province." 2 . 

The mere intervention of a third party between the province 
and the crown seems to have been felt as a grievance. This 
was true at least in Pennsylvania, where the crown had 
reserved to itself a veto on legislation, 3 and where the pro- 
prietor also had the right of assent or veto. There was no 
trouble so long as the proprietor was present; but when in his 
absence he reserved the right of rejecting laws approved by his 
deputy, there was vigorous opposition. The proprietor was 

1 For Maryland, see Sharpe's Correspondence, Mary land Archives, vols, 
vi., ix. passim, especially vi. 384, 424-427. For Pennsylvania, see Historical 
Review of the Constitutio?i and Government of Pennsylvania (1759), 81- 
84, 232-312, and Appendix. 

2 Maryland Archives, vi. 399. 

8 Charter to William Penn, 1 681, in Poore, Charters and Constitutions, 
ii. 1509. 



14 EVOLUTION OF THE PROVINCIAL GOVERNMENT. 

finally obliged to yield on this point; 1 but he retaliated by 
imposing limitations on the governor's power of assent to 
legislation, clinching them by the requirement of a bond for 
the due observance of all such instructions. 2 

In Maryland and the Carolinas, where the crown had re- 
served no veto, there was similar opposition to the exercise 
of the proprietary veto, inasmuch as the colonists claimed that 
the acts of an agent bound his principal. In Maryland the 
assembly regarded it as a serious grievance that there should 
be no one in the province capable of giving a final assent to 
legislation, and in 1681 a bill was passed by the lower house, 
making the governor's assent final in legislation. The bill 
was thrown out by the council, which defended the proprietary 
veto as necessary to the security of proprietary rights. The 
proprietor agreed, however, that during his absence his assent 
or dissent should be published within eighteen months. 3 The 
same view as that held in Maryland was taken by the assembly 
of South Carolina; and when the proprietary government was 
finally overthrown, the proprietor's right of veto was cited as 
one of the grievances that justified revolutionary action. 4 The 
veto by the proprietor was not, it is true, essentially different 
from that by the crown in the royal governments ; but, as the 
charters gave the right of legislation to the proprietor and the 
freemen, 5 it was felt that the absence of the proprietor ought 
not to add a second veto. 

1 Opinion of Attorney-General Northey, 1705, Statutes at Large of 
Pennsylvania (1896), ii. 473. 

2 Pennsylvania Records, vi. 525 seq. ; Proud, History of Pemisylvania, 
ii. 177 seq. See also the decision of the council, quoted in Historical 
Review of the Constitution a?id Govermnent of Pennsylvania (1759). 79 : 
" This [the bond] was first submitted to by Keith, and has been a Rule to 
his Successors, with this Difference, that whereas the Penalty exacted from 
him was but 1000/. Sterl. it has been since raised to 2, or 3000/." Cf. the 
argument, Ibid., 78. 

3 Maryland Archives, i. 31, ii. 174, 470, iii. 50-51, vii. 152, 160, 1&2, 508. 

4 Rivers. Sketch of the History of South Carolina, 433-435 ; South Carolina 
Historical Society, Collections, i. 170; " Narrative of the Proceedings of the 
People of South Carolina," in Carroll, Historical Collections, ii. 169. 

6 In Mary-land, the Carolinas, and Pennsylvania; there was no such 
clause in the patent to the Duke of York. 



WEAKNESS OF THE PROPRIETARY GOVERNMENTS. 1 5 

In addition to these difficulties of the proprietary system, 
the proprietors in many cases proved their inability to main- 
tain stable and efficient governments. This circumstance was 
strikingly true in the Carolinas, where the proprietors seemed 
almost helpless to deal with the turbulent population. Edward 
Randolph, for whose partisanship some allowance must per- 
haps be made, wrote that North Carolina at the end of the 
seventeenth century was on the verge of anarchy. 1 The people 
of South Carolina, in their petition for a royal government, 
urged among other reasons for the change the desire for royal 
protection from the Spanish and Indian invasions which were 
then threatening the colony. 2 A similar state of things ex- 
isted in New Jersey, whither the crown was called upon to 
send governors capable of enforcing law and order. 3 

Besides all these elements of weakness which worked against 
the proprietary system, there were other circumstances in the 
situation which rendered the transition to the royal government 
peculiarly easy. The various experiments in constitution- 
making had for the most part proved failures; and as a result 
there grew up in the proprietary colonies political organiza- 
tions very similar to those in the royal governments. In all 
these colonies there was, for example, a governor nominated 
by the proprietor, with a nominated council and an elective 
assembly. Thus the only step necessary in the transition from 
proprietary to royal government was the resumption by the 
crown of the prerogatives which it had intrusted to the pro- 
prietor. The changes in the internal constitution of the colony 
were very slight. 

In the last years of the Stuarts, the policy of direct royal 
control began to be aggressively pushed. In one case, that of 
New York, the change came naturally, without a contest; for 
when James, Duke of York, became king, New York ceased 

1 Randolph's memorial, 1696, New Jersey Documents, ii. 120. 

2 " Narrative of the Proceedings of the People of South Carolina," in 
Carroll, Historical Collections, ii. 192. 

8 Edward Randolph, " Articles of High Crimes : Misdemeanours Charged 
upon the Governours in the Severall Proprieties," New Jersey Documents, 
ii. 358 ; recommendations of the Lords of Trade, Ibid., ii. 420. 



l6 EVOLUTION OF THE PROVINCIAL GOVERNMENT. 

to be a proprietary colony and became a royal province. In 
most cases, however, the new policy included measures much 
more aggressive, which took shape, now for the first time, in 
a definite and determined attack upon the charters all along 
the line. The blow fell first upon Massachusetts. 

Massachusetts, almost from the beginning, had been com- 
pelled to face attacks, open or secret, upon the charter of 1629. 
As early as 1634, Gorges had urged the establishment of royal 
governments in New England. 1 Legal processes had been 
begun against the charter, and more than once Massachusetts 
had stood on the verge of a catastrophe from which she had 
been saved only by skilful diplomacy and a fortunate combina- 
tion of circumstances. 2 The unfriendly attitude of the crown 
after the Restoration excited new apprehensions, but for a few 
years the company held its ground. At last, however, the 
blow fell. In 168 1 the king reinforced his demands for a 
change in the colonial constitution by threatening to annul 
the charter; 3 in 1683 a writ of quo warranto was issued against 
it ; 4 in the next year the case was transferred to the Court of 
Chancery; and before the year was over the charter was 
annulled. 5 For a time, however, the old charter government 
was allowed to go on, until the new king, James II., by his 
commission to Joseph Dudley, organized the first royal gov- 
ernment in Massachusetts. 6 Dudley's title was that of presi- 
dent, and he was supported by a council also nominated by the 
crown. Besides Massachusetts Bay, the commission included 
New Hampshire, Maine, and the King's Province; and in the 
following year, 1686, Sir Edmund Andros received a new com- 
mission, which included also the colony of Plymouth. 7 

1 Sainsbury, Calendar of State P afters, Colonial Series, America and 
West Indies, 1 574-1 660, pp. 178, 192. 

2 Ibid., 200, 206, 251, 256; Winthrop Papers, in Massachusetts Histori- 
cal Society, Collections, 4th Series, vi. 58; Hutchinson, History of Massa- 
chusetts, i. Appendix, 442, 460. 

8 Doyle, English i7i America, iii. 280. 

4 Records of Massachusetts Bay, v. 421 sea. 

5 Hutchinson, History of Massachusetts, i. 305-306, and notes. 

6 New Hamftshire Provincial P afters, i. 590. 

7 Force, Tracts, iv. No. 8. 



ATTACKS ON THE CHARTERS. 1 7 

Proceedings had already been begun against other colonial 
charters. Rhode Island and Connecticut were brought under 
royal control, and in 1688 Andros received a commission as 
governor of New England, which was then defined so as to 
include New York and the Jerseys. 1 Orders had also been 
issued for the prosecution of quo warranto writs against the 
governments of Connecticut, Rhode Island, East and West 
Jersey, Maryland, Carolina, and Delaware. 2 Thus, within 
two years after the accession of James II., proceedings had 
been entered upon against all the proprietary and charter 
governments, with the exception of Pennsylvania. In general, 
then, it may be said that the new royal policy included two 
things : first, the substitution of royal for proprietary and 
charter governments; and, secondly, a process of consolida- 
tion, as illustrated by Andros's commission as governor of the 
greater New England. 

The Revolution of 1688 put a stop to these proceedings; but 
William III. did not altogether abandon the policy of his 
predecessor. To him, as the head of the great European 
alliance against Louis XIV., careful organization and concen- 
tration of forces in all quarters must have seemed highly desir- 
able. The first period of the great conflict between England 
and France for the possession of the North American continent 
was just beginning, and clearly a well-organized system of 
royal governments was far better adapted to meet such a test 
than the old aggregation of proprietary and charter colonies. 
Moreover, the navigation acts could be better enforced by royal 
governors than by irresponsible proprietary agents. Thus, 
although Rhode Island, Connecticut, and, for a time, the 
Jerseys were allowed to retain their independent governments, 
the establishment of royal governments in Massachusetts and 
New York was a substantial and permanent result of this first 
war upon the charters. 

The positions of the Maryland and Pennsylvania proprietors 
were complicated by personal considerations. Lord Baltimore 

1 Commission in New York Documents, iii. 537. 

2 Order of July, 1685, Ibid., iii. 362. Order of April, 1687, Maryland 
Archives, v. 542 ; Chalmers, in Carroll, Historical Collections, ii. 323. 

2 



1 8 EVOLUTION OF THE PROVINCIAL GOVERNMENT. 

was a Roman Catholic; and Penn's relations with James II. 
were such as to arouse suspicion in the minds of the dominant 
party. In Maryland, an unfortunate emphasis was given to 
the religious element by the rebellion in that colony, which 
was conducted on ostensibly anti-Catholic lines. 1 At length, 
in 1689, the Committee of Trade and Plantations recommended 
that measures be taken to bring the "proprieties" of Carolina, 
Maryland, and Pennsylvania "under a nearer dependence on 
the Crown"; 2 and in 1690 the attorney-general was ordered to 
proceed by scire facias against the charter of Maryland. 

A new theory was now formulated to justify royal inter- 
ference. Chief Justice Holt, being called upon to give an 
opinion, declared that, "it being in a case of necessity," the 
king might appoint a governor in Maryland, though the pro- 
prietor could not be deprived of his income from the province 3 
except through forfeiture. This theory was more distinctly 
stated by the law officers of the crown a few years later when the 
solicitor-general made a report on the charters of Connecticut 
and New Jersey, giving his opinion "that notwithstanding any 
thing in the said Charters or Grants, there Majesties by virtue 
of their Prerogative and Soverainty over those Colonies, which 
is not granted from the Crown to the Gov!" and Company, nor 
to the proprietors by any of the Chart rs may appoint Governors 
for these places with such Powers, and authorities for the Gov- 
ernment thereof ... as their Majesties shall in their great 
wisdom judge reasonable." 4 A similar opinion was given by 
the crown law officers some years afterwards, upon complaint 
made against the governments of Rhode Island and Connecti- 
cut. They declared that there was nothing in the charters 
which could "exclude your Majesty (who has a right to govern 
all your subjects) from naming a Governor on your Majesty's 
behalf, for those colonies at all times." 5 This statement is 
one of great interest, asserting as it does within the field of 
colonial government that right of the crown to govern all its 
subjects which in England had during the middle ages gradu- 

1 Declaration in Maryland Archives, viii. 100 seq., 215 seq. 

2 North Carolina Records, i. 359. 3 Chalmers, Opinions, 6$. 
4 New Jersey Docwnents, ii. 100. 5 Chalmers, Opinions, 66. 



THE KING'S RIGHT TO GOVERN ALL SUBJECTS. 1 9 

ally been secured against the hostile forces of local privilege 
and feudal anarchy. It is the recognition of this principle 
which chiefly distinguishes the modern State, whether it be 
an absolute monarchy or a representative republic, from the 
feudal organization of the middle ages. 

It has been very commonly thought that this policy of secur- 
ing direct control by the crown was inspired by the natural 
hostility of a tyrannical government to the local liberties of 
the colonies; but it must not be forgotten that, taking the 
colonies as a whole, the change was distinctly in the interest 
of better government. Royal tyranny may have been bad 
enough; but in the long run it was far better than the control 
of private and, to a large extent, irresponsible proprietors. 
May it not be said, too, that this union in dependence upon 
the crown worked in some measure toward that sense of com- 
mon political interests which, imperfect as it was, was yet the 
indispensable condition for success in the struggle for inde- 
pendence, and paved the way for the "more perfect union" of 
the federal constitution ? 

The doctrine laid down by Chief Justice Holt was soon put 
into general operation. In Pennsylvania, Governor Fletcher 
of New York assumed control on the authority of a royal com- 
mission; 1 and although Penn succeeded with some difficulty 
in recovering his rights of government, yet a precedent had 
been set which might be cited on future occasions. The pro- 
ceedings in Maryland were more serious. In 1691 the crown 
issued a commission to Sir Lionel Copley as governor of Mary- 
land, thus establishing a royal government, without however 
depriving Lord Baltimore of his property rights in the soil. 2 
The charter still stood; and finally, twenty-four years later, 
a Protestant Lord Baltimore was allowed to resume the govern- 
ment of the province. 3 In the Jerseys, the proprietary gov- 
ernment had been restored after the revolution of 1688, but its 
position was by no means secure. There was a general feeling 
of discontent with the proprietary regime, and frequent peti- 

1 Pennsylvania Records, i. 352. 2 Maryland Archives, viii. 263. 

3 Ibid., vi. 25. 



20 EVOLUTION OF THE PROVINCIAL GOVERNMENT, 

tions for the appointment of a royal governor were made. 1 
The situation was further complicated by the existence of 
factions among the proprietors. 2 As early as 1687 the pro- 
prietors had made propositions looking toward the surrender 
of the government, but with a reservation of their property 
rights. 3 Finally terms of surrender were arranged, and in 
1702 New Jersey became a royal province. 4 

Similar causes brought about similar results in the Carolinas. 
In South Carolina, the oppressive treatment of the dissenters 
by a party which received the support of the proprietors, and 
the proprietors' veto of popular measures, combined to develop 
the spirit of opposition. Furthermore, the invasions by the 
Spaniards and Indians seemed to show the inability of the 
proprietors to maintain an effective defence of the province. 
At length the growing discontent culminated in the rebellion 
of 1 719, when the popular party assumed control in the name 
of the king, and a provisional government was chosen to serve 
until the crown should take final action. 5 The crown, on the 
other hand, as early as 1706, had taken steps toward the over- 
threw of the proprietary government. In 1705 the House of 
Lords, after declaring null and void certain acts against dis- 
senters, had urged the crown "to use the most effectual 
Methods to deliver the said Province from the arbitrary Oppres- 
sions under which it now lies." The Lords of Trade had then 
recommended the institution of legal proceedings against the 
charter in the Court of Queen's Bench, and the queen had 
issued instructions to the law officers of the crown, although 
nothing came of them at the time. 6 Finally the uprising of 
1 7 19 gave the crown its opportunity. The regency in council 
declared that the proprietors had forfeited their charter, and 
ordered the attorney-general to take out a writ of scire facias 

1 See, for example, the "Address of the Inhabitants of West Jersey," 
New Jersey Documents, ii. 380. 

2 Ibid., 418. 3 Ibid., i. 535-539; propositions of 1688, Ibid., ii. 26. 

4 Ibid., ii. 452. 

5 " Narrative of the Proceedings of the People of South Carolina," in 
Carroll, Historical Collections, ii. 141. 

6 Address of the House of Lords, in Oldmixon, British E?nftire in 
America, i. 488; Journals oj the House of Lords, xviii. 150-151. 



EXTENSION OF ROYAL GOVERNMENT. 21 

against them. 1 The crown, without waiting for final action 
by the courts, then proceeded to exercise its authority in 
South Carolina by the appointment of Francis Nicholson as 
governor. 2 

Of all the proprietary governments, that of North Carolina 
had been the most notoriously inefficient. In this colony the 
authority of the proprietors almost lapsed at times; and in 
171 1 there was practically a state of war between conflicting 
claimants to the government. 3 The proprietary system, how- 
ever, dragged out a wretched existence until 1729, when the 
long negotiations between the crown and the proprietors came 
to a close, in the final surrender of both provinces to the 
crown. 4 

The surrender of North Carolina marked the last stage in 
the course begun by Charles II. At one time or another the 
crown had set up its own governors in every one of the pro- 
prietary and charter colonies; and at the end of this period 
of transition all but four colonies had been brought into the 
class of royal governments. Of these, two, Pennsylvania and 
Maryland, represent the proprietary government, and two, 
Rhode Island and Connecticut, the charter government. 
Even these four were not altogether secure from attack. In 
1702 an act of Parliament was proposed for bringing the pro- 
prietary governments into closer dependence upon the crown ; 
but although the proposition was supported by the Board of 
Trade, it came to nothing. 5 Again, complaints made by Gov- 
ernors Dudley of Massachusetts and Cornbury of New York 

1 South Carolina Historical Society, Collections, i. 172, 256. 

2 Ibid. 

8 Chalmers, in Carroll, Historical Collections, ii. 301 sea. ; Chalmers, 
Revolt of the A?nerican Colonies, i. 398 ; North Carolina Records, i. 779 
seq., 797, 801 ; Hawks, History of North Carolina, ii. 418. 

4 Act of Parliament completing the agreement with seven out of eight 
proprietors. See North Carolina Records, iii. 32. Lord Carteret retained 
his proprietary interest of one-eighth until 1744. For details on the sur- 
render of the Carolina charter, see McCrady, South Carolina tinder the Pro- 
prietary Gove?-nment, chaps, xxix., xxx. 

5 South Carolina Historical Society, Collections, i. 220; Chalmers, Re- 
volt, i. 306, 342; North Carolina Records, i. 535 seq., 552. 



22 EVOLUTION OF THE PROVINCIAL GOVERNMENT 

against the governments of Connecticut and Rhode Island, 
brought out the report of the crown law officers already referred 
to, declaring the right of the crown to " govern " all its sub- 
jects. 1 In 171 1 the adoption of a uniform plan of colonial 
government was spoken of as desirable but impracticable, "the 
purchasing proprietyes and takeing away of usurpations being 
a work of time and trouble." 2 As late as 1721 the Massa- 
chusetts agent in London, Jeremiah Dummer, published his 
"Defence of the New-England Charters," designed to meet an 
impending attack on the charter governments ; and even long 
afterward there was an unsuccessful attempt in Pennsylvania 
to overthrow the proprietary government of that colony. 3 

Those proprietary governments which were permitted to 
continue were nevertheless subjected to a considerable degree 
of royal control. By the navigation laws the colonial governors 
were made, to a considerable extent, the administrators of 
these trade regulations; and by the statute 7 8z 8 William 
III. it was provided that all governors of plantations should 
be approved by the crown. 4 Thus the proprietary governor 
himself became in a measure a royal officer responsible to the 
crown. It is interesting to note that, in spite of the policy of 
direct royal control so generally adopted, in 1732, three years 
after the surrender of the Carolina charter, the crown by its 
charter to the Georgia trustees recurred temporarily to the 
old proprietary system. The charter of Georgia had, however, 
a saving clause, in the provision that after twenty-one years the 
government of the colony was to revert to the crown. Conse- 
quently in 1754, without a contest and as a matter of course, 
Georgia became a royal province. 5 

1 See above, p. 18. 

2 Letter of Governor Hunter, New Jersey Documents, iv. 138. 

8 Franklin, Works (ed. Bigelow), iii. 286. Cf. Stille', Life and Times of 
John Dickinson, ch. iii. 

4 c. 22, § xvi. : Statutes at Large, iii. 613. These provisions apparently 
applied also to the charter colonies, but they could hardly have been en- 
forced upon an annually elected governor. 

5 Charter in Poore, Charters and Constitutions ', i. 369 ; Chalmers, 
Opinions, 69 sea. 



CHAPTER II. 

THE EVOLUTION OF THE PROVINCIAL EXECUTIVE. 

As the colonial executive only gradually came under royal 
control, so its ultimate form, that of a single head checked by 
a nominated council, was also at first undetermined. In the 
first century of colonization there were numerous experiments. 

For the study of the executive, Virginia, as the oldest of 
the royal governments, again furnishes a convenient starting 
point. Under the first charter the resident government was 
vested in a council appointed by the superior council in Eng- 
land. 1 This council was to choose its own president, to whom 
certain minor functions were to be intrusted exclusively ; and 
yet the right of the council to appoint and remove him at 
pleasure made that body the real executive, and justifies the 
classification of this early Virginia executive as of the col- 
legiate type. This government proved unwieldy and ineffec- 
tive; in 1609, therefore, the company received its new charter, 
which left it free to choose its own methods in the government 
of the colony. 2 As it was evident that a strong hand was 
needed, the principle of having a single head was adopted, and 
Lord Delaware was made governor, with absolute discretion 
in the choice of such councillors as he saw fit to employ. 3 
This policy, demanded perhaps by the exigencies of the time, 
worked ill as a permanent system, inasmuch as the governors 
were nearly always arbitrary in their methods, and often 
mercenary and unscrupulous. Moreover, the fact that as yet 
the colony had no popular assembly was a source of especial 

1 Royal orders in Brown, Genesis of the United States, i. 6$. 

2 Poore, Charters and Constitiitioiis, ii. 1893. 

3 Delaware's commission in Brown, Genesis of the United States, i. 375 
sea., especially 380. 



24 EVOLUTION OF THE PROVINCIAL EXECUTIVE. 

danger; and there was therefore general rejoicing when the 
governor was at last "restrained to a Counseil ioyned with 
him." 1 The Ordinance of 162 1, which was probably hardly 
more than a formal statement of the constitution actually 
introduced two years before, established two councils, the one 
legislative, the other executive. The governor, however, 
seems to have been little more than the first member of the 
council. 2 

It is hard to say what changes took place in the constitution 
of the executive on the introduction of the royal government, 
if indeed there were any real changes. The royal commissions 
of 1624 and 1625 were commissions to the governor and council, 
without any definite statement as to their mutual relations. 3 
It is clear, however, that there was a period of conflict between 
two ideas. The governor contended for the theory of a single 
head, advised and to a certain extent checked by the council, 
yet possessing in himself the real executive authority ; whereas 
the council claimed for itself a larger share of the executive 
power. 4 In 163 1 the governor and council came into direct 
conflict. Governor Harvey complained that he could do noth- 
ing but what the council advised, and that his power extended 
no farther than to a casting vote; 5 while from the council, on 
the other hand, there were complaints of the overbearing con- 
duct and usurpation of Harvey. 6 

Constitutional development in Virginia was interrupted by 

1 " A Declaration of the State of the Colonie," June, 1620, in Force, 
Tracts, iii. No. 5, p. 6. 

2 Ordinance in Hening, Statutes, i. no; instructions to Governor Wyatt, 
Ibid., 114 seq. 

3 Commission to Wyatt, 1624, in Rymer, Fasdera, xvii. 618 ; to Yeardley, 
" De Commissione directa Georgio Yardeley militi & aliis," Ibid., xviii. 311. 

4 Compare, however, the letter to Sir Francis Wyatt, 1626, conceding 
that important actions should be determined by a majority of the council, in 
Sainsbury, Calendar of State Papers, Colonial Series, A77ierica and West 
Indies, 15 74- 1660, p. 79. 

5 Letter of Governor Harvey, 1631, Ibid., 129. The instructions to 
Berkeley in 1641 direct that he shall have only a casting vote in the coun- 
cil. See § 5 of instructions, Appendix A below. 

6 Mathews to Wolstenholme, 1635, in Sainsbury, Calendar of State 
Papers, Colonial Series, A77ierica a7id West Ltdies, 1 574-1660, p. 208. 



VIRGINIA AND MARYLAND. 2$ 

the civil war; but by 1689 the governor was clearly separated 
from the council and possessed considerable power over it. 
Not only had he the right to make provisional appointments to 
fill vacancies in the council, but he might suspend members 
for causes which, by a later provision, were to be communicated 
to the home government. Moreover, when councillors were 
regularly appointed by the royal order, it was usually on the 
nomination of the governor. 1 The exact relation between the 
governor and the council continued to be matter of contro- 
versy; but there was now a rough definition of their relative 
positions, showing a single head, the governor, invested with 
the central executive power, but checked in its exercise by a 
nominated council more or less under his influence. 2 The 
system thus worked out in Virginia seems to have been the 
model for other royal provinces, and even to have influenced 
the proprietary governments to some extent. 

The proprietary government in Maryland, established soon 
after the introduction of royal government in Virginia, adopted 
as the form of executive in the colony a governor with an 
advisory council, both appointed by the proprietor. The 
council in Maryland was at first very small : only three mem- 
bers were named in Calvert's commission of 1637. 3 It 1S not 
clear whether the taking of advice was at first compulsory 
upon the governor; 4 but the commissions of 1644 an d 1666 
expressly stated that the advice of the council should be taken, 
at least in important matters. 5 Though the councillors were 
regularly appointed by the proprietor, the governor was some- 
times authorized to make additional appointments. 6 

1 On this subject, see Beverly, History of Virginia, 202; Hartwell, 
Blair, and Chilton, Present State of Virginia, 22-24; Culpeper's instruc- 
tions, Calendar of Virginia State Papers, i. 14; Howard's instructions, 
cited in Doyle, English in America, i. 352-353. 

2 For a fuller statement of the relation between the governor and the 
council, see below, ch. v. 

3 Bozman, History of Maryland, ii. 572. 

4 Note the clause "as he shall see cause," in the commission of 1637. 

5 Commission of 1644 i n Bozman, History of Maryland, ii. 631 ; that of 
1666, Maryland Archives, iii. 542. 

6 In 1648, the governor was authorized to appoint two or three coun- 



26 EVOLUTION OF THE PROVINCIAL EXECUTIVE. 

In 1665 the Carolina proprietors issued a document called 
the "Concessions," by the provisions of which the executive 
consisted of a governor and a council of from six to twelve 
persons named by the governor. 1 The executive power was 
vested in the governor and council, but the governor, through 
his right of naming the councillors, held a position of prac- 
tical independence. This system was soon superseded by the 
elaborate instrument known as the "Fundamental Constitu- 
tions," which provided for an organization of the proprietors 
themselves, called the "Palatine's Court," the president of 
which was the palatine chosen by the proprietors from their 
own number. 2 This was to be the chief executive body of the 
colony, though certain larger questions were to be settled by 
the Grand Council, consisting of the proprietors themselves 
and forty-two councillors chosen by a complicated process of 
election in which there was a strong aristocratic element. 3 
It is clear that the collegiate idea of the executive was thus 
carried to an extreme point. The palatine who stood at the 
apex .of the system was only a primus inter pares, and even 
the Palatine's »Court did not possess full executive powers, 
since many of these were reserved to the Grand Council. 
Inasmuch as this system never became the actual constitution 
of the colony, it is idle to conjecture how it would have 
worked, though it may be noted that some of the formal 
provisions of the " Fundamental Constitutions " were observed 
for a considerable time. 

In the absence of the palatine and his associate proprietors, 
the executive power in the province was vested in the gover- 
nor, who was the proxy or deputy of the palatine, and the coun- 
cillors, each of whom was the representative of some one of 

cillors in addition to those named by the proprietor. See the commission 
to Governor Stone, in Bozman, History of Maryland, ii. 642 seg. t especially 
647. 

1 North Carolina Records, i. 79. 

2 Later succession was on the basis of seniority. See § 1 of the instruc- 
tions to Governor Ludwell, 1691, in Rivers, Chapter in the Early History 
of South Carolina, Appendix. 

8 " Fundamental Constitutions " in Poore, Charters and Constitutions, 
ii. 1397. 



THE CAROLINAS. 2J 

the proprietors. 1 For a time, it is true, the assembly was per- 
mitted to elect a certain number of commoners to the council; 
but the proprietors found this practice unsatisfactory, and by 
1 69 1 it was abandoned. 2 The governor and the deputies, like 
the Palatine's Court which they represented, constituted in 
theory a collective executive ; 3 though the independent posi- 
tion of the councillors was modified somewhat by the practice 
of giving the governor blank deputations, which he might fill 
out at his discretion. Appointment by the individual proprie- 
tors continued, however, to be the rule. 4 

Finally a change of some importance was made in the form 
of the council, a change in form which implied also a change 
in theory. Instead of instituting a body consisting of the 
personal representatives of eight proprietors, the North Caro- 
lina instructions of 171 8 organized a council of ten members 
besides the governor, "as the custom is in his Majesty's other 
colonies." 5 In South Carolina, similar action was taken in 
1719. In the latter colony the people were inclined to empha- 
size the principle involved in the change, and refused to recog- 
nize the new constitution as valid. The discussion was closed 
by the rebellion of the same year, and the consequent establish- 
ment of royal government in South Carolina. 6 

In North Carolina there was a controversy, similar to that 
in Virginia in Harvey's time, arising from the desire of the 
governor to acquire greater independence of the council. 
Governor Everard in 1729 claimed an independent right of 
nominating and removing public officers. Here, as in South 

1 " Temporary Laws " of 1671, in Rivers, Sketch of the History of South 
Carolina, 351. 

2 Address to Governor Sothel, Ibid., 426 ; also instructions to Ludwell, 
1691, § 10. 

8 Letter of the Earl of Shaftesbury, North Carolina Records, i. 214. Cf. 
Ludwell's instructions, 1691. 

4 For examples, see North Carolina Records, i. 346, ii. 175; South Caro- 
lina Historical Society, Collectiotis, i. in, 136 ; Rivers, Sketch of the His- 
tory of South Carolina, 341. 

6 North Carolina Records, ii. 307. For later variations, see Ibid., 454, 516. 

6 South Carolina Historical Society, Collectiotis, i. 170; Carroll, Histori- 
cal Collections, ii. 158, 169. 



28 EVOLUTION OF THE PROVINCIAL EXECUTIVE. 

Carolina, however, the controversy was closed by the establish- 
ment of a royal government in the colony. 1 

Of the Carolina proprietors,, two, Berkeley and Carteret, 
were also proprietors of New Jersey. The " Concessions " of 
New Jersey, like those of Carolina, vested executive powers 
in the governor and council jointly, but, on the other hand, 
authorized the governor to appoint the councillors, though 
the proprietors maintained a reserved right to appoint directly 
if they saw fit. 2 By later instructions it was provided that 
vacancies in the office of either governor or councillor should 
be filled by vote of the governor and council. 3 In 1683 the 
new proprietors of East Jersey proposed a system styled the 
"Fundamental Constitutions," which is of some interest as 
showing the political theories of the time. 4 By this instru- 
ment a large executive council was provided for, consisting of 
twenty-four proprietors and twelve freemen, and this large 
body was again subdivided into a number of committees. It 
is not surprising, however, that such a cumbersome system 
was n^ver organized except on paper. In the meantime, the 
old form, by which the power was vested in the governor and 
council, was maintained, although the governor's power was 
very considerably checked by the council. Appointments 
were determined apparently by the governor and council 
jointly; commissions were issued by order of the council. 5 

The first government of New York was extremely simple. 
Complete political authority was vested in one man, Gov- 
ernor Nicolls, to whom the Duke of York granted all the 
powers conferred upon the proprietor by the charter of 1664. 
This despotic system was soon modified by the addition of a 
council, which was, however, to be appointed by the governor. 6 

1 North Carolina Records, ii. 535, iii. 15. 

2 " Concessions " in New Jersey Documents, i. 28 sea. Cf. commission 
and instructions to Philip Carteret, Ibid., 20, 21. 

8 Commission to Philip Carteret, 1674, in Learning and Spicer, Grants, 
Concessions, etc., 58. 

4 New Jersey Docmnents, \. 395 sea. 

6 See minutes of the council, New Jersey Documents, xiii. 39-42, 46, 115, 

174. 

6 Commission to Nicolls, Pennsylvania Archives, v. 509; Nicolls's 



NEW YORK, NEW HAMPSHIRE, PENNSYLVANIA. 29 

Governor Dongan's instructions of 1683 named some of the 
members of his council, but empowered him to suspend 
councillors and to fill the vacancies. 1 Finally, in 1688, the 
royal commission to Andros established the usual rule of the 
royal governments. 2 

The first royal commission for the government of New 
Hampshire provided for a collegiate executive, vesting execu- 
tive powers in the president and council jointly. 3 Three years 
later, however, a commission was issued providing for a royal 
government in the usual form. 4 

In Pennsylvania the charter given to William Penn in 168 1 
was followed by a series of constitutional experiments. Pass- 
ing over Penn's first commission to his deputy, Markham, which 
was purely provisional, 6 the "Frame of Government of 1682 " 
was the first constitution of Pennsylvania. By this document 
the executive power was vested in a large body called the 
"Provincial Council," in which the governor was to preside 
and to have a "treble voice." He was also to have a limited 
power of appointment on the nomination of the council, but 
was to perform no public act of importance without the advice 
and consent of the council. This Provincial Council was com- 
posed of seventy-two members, of whom one third were annually 
elected by the freemen for terms of three years. The business 
of the council was divided among committees. Later, the 
number of councillors, having been found too large, was reduced 
successively to eighteen and twelve. 6 On Penn's departure 
from the colony in 1684, the government was left in the hands 
of this Provincial Council, which was to act in the name of 
the proprietor. 7 In 1687 Penn issued a commission to five 

account, Documentary History of New York (1849),!. 87; instructions to 
Andros, 1674, New York Docu?7ients, iii. 216. 

1 New York Documents, iii. 331. 

2 Andros's commission and instructions, Ibid., 53J. 

3 Commission to Cutts, 1679, m A^se/ Hampshire Provincial Papers, i. 373. 

4 Commission to Cranfield, Ibid., 433. 

5 Charter a?id Laws of Pennsylvania, 470. 

6 See Frames of Government of 1682, 1683, and 1696, Pennsylva?iia 
Records, i. Introd. 

7 Ibid., 119. 



30 EVOLUTION OF THE PROVINCIAL EXECUTIVE. 

councillors, authorizing them collectively to exercise the func- 
tions of a deputy-governor. 1 In the next year the governor's 
office was placed in the hands of one man ; 2 but two years later 
there was a recurrence to the collegiate form, in a commission 
conferring the powers of the deputy-governor upon the council. 3 
After the brief period of royal control, Penn adopted a form 
similar to that in the royal governments, by which a governor 
was appointed by the proprietor to act in conjunction with 
councillors, whose assent was required in all cases. 4 In 1701 
the constitution of the colony was put into its permanent form, 
under which the governor was to be the chief executive, 
although checked by councillors who were to "assist" him 
"with the best of their advice." These councillors were 
appointed by the proprietor in the first instance, but they were 
afterward to be named by the governor. 5 

After this rapid survey of the different colonies, the results 
of the first century of constitutional experience may be briefly 
summed up. To represent the colonial executive as having 
assumed its final form at this time would be to give a false 
impression of the actual situation, inasmuch as questions were 
still open which gave rise to frequent controversies between 
governor and council. The general result, however, is clear. 
There was in each of the colonies, excluding the elective gov- 
ernments, a single head, the governor, appointed either by the 
crown or by the proprietor. This governor was checked by a 
council appointed generally by the superior authority in Eng- 
land, though usually on the recommendation of the governor, 
— a fact of considerable importance in determining the mutual 
relations of governor and council. To this general rule in 
regard to the appointment of councillors there were, however, 
two leading exceptions. In Pennsylvania they seem to have 

1 Charter and Laws of Pennsylvania, 514. 

2 Blackwell's commission in Pennsylvania Records, i. 228. 

3 An alternative commission sent out by Penn authorized the council 
to name three persons, Ibid., 315. 

4 Commission to Markham, Ibid., 475. In 1700 Penn again visited the 
colony to govern it in person for a time, appointing a council to assist him, 
Ibid., 580. 

5 Proud, History of Pennsylvania, i. 451. 



IMPERFECT DEFINITION OF POWERS. 3 1 

been nominated by the governor and presented by him to the 
council for acceptance. 1 In Massachusetts they were elected 
by the General Court, consisting of the council and the House 
of Representatives, and the choice was then subject to the 
veto of the governor. 2 The chief question still left open in 
all the colonies was, then, as to the exact extent to which 
the council should be allowed to control the action of the 
governor. 

Still more important than these questions of organization 
was the gradual growth from loose and vague provisions toward 
a more accurate definition of the powers and duties of the 
executive. The nature of the early colonial governments was 
necessarily determined to a large extent by the conditions 
under which they were organized. The early governor was 
not the executive of a settled political community. In addi- 
tion to his political functions, he was often the manager or 
the superintendent of an essentially commercial enterprise. 
Indeed, in the first stages of colonization, the most important 
of the governor's duties was the superintendence of the gen- 
eral work of settlement, such as the granting of lands, the 
development of natural resources, and the maintenance of 
friendly relations with the savages. It is hardly strange, 
then, that the political aspects of his office should have been 
overshadowed, or at least strongly modified, by the peculiar 
situation in which he was placed. It was inevitable that his 
political functions should be loosely defined. 

This business aspect of the governor's office, his position 
as the manager of a large commercial establishment, so to 
speak, is clearly brought out in the instructions and corre- 
spondence of the earliest colonial governors. The Virginia 
president and council of 1607, and the first governors who 
succeeded them, were clearly the overseers of an industrial 
establishment intended to furnish revenue for the government 

1 Cf. commission to the council, 1701, in Proud, History of ' Pennsylvania^ 
i. 451. For illustrations of practice, see Pennsylvania Records, ii. 68, 117, 
iii. 232, v. 1. 

2 Massachusetts Charter, 1691, in Poore, Charters and Constitutions, 
i. 942. 



32 EVOLUTION OF THE PROVINCIAL EXECUTIVE. 

at home. The governor of Maryland received instructions not 
only for the government of the colony, but for the manage- 
ment of the proprietor's private stock-farm. 1 Furthermore, 
the turbulent elements in these early colonies made necessary 
the enforcement of almost military discipline; 2 and this aspect 
of the governor's office was also emphasized by the necessity 
for constant watchfulness in order to guard the colony against 
its savage neighbors. It was only natural, then, that in this 
era more emphasis should be laid upon executive efficiency 
than upon constitutional limitations. 

The charters issued to the proprietors and to colonizing 
companies were usually couched in very general terms. The 
grantees were empowered to " punish, pardon, govern, and rule " 
the inhabitants of the colony, though frequently the provision 
was made that legislation and taxation should be with the 
consent of the freemen. This limitation was imposed in the 
charters of Maryland, Carolina, and Pennsylvania. The New 
York charter reserved the right to hear appeals carried from 
the provincial courts to the king in council, but contained no 
restriction as to legislation and taxation. 3 The proprietors had 
thus left to them a wide discretion in the constitution of their 
colonial governments. 

The first governor's commissions were correspondingly in- 
definite. The Virginia president and council of 1607 were 
invested with powers legislative and judicial as well as execu- 
tive. 4 The very brief commission to Lord Delaware in 1610 

1 Calvert Papers (Maryland Historical Society, Fund-Publication, No. 
28), 194, 214. To the governors of the Carolinas were given full instructions 
as to the manner of laying out town sites, and in regard to the development 
of the natural resources of the colony. See instructions of 1669, in Rivers, 
Sketch of the History of South Carolina, 347. 

2 An extreme illustration is to be found in the " Articles, Lawes, and 
Orders, Diuine, Politique and Martiall " issued in Virginia in 161 o and 
161 1, which were really military regulations of the most extreme type, 
adapted to the use of a disorderly soldiery in a hostile country. See Force, 
Tracts, iii. No. 2. 

3 All these charters are given in Poore, Charters and Constitutions. 
The Maryland charter is translated in Bozman, History of Maryland, ii. 9. 

4 "Articles," etc., in Brown, Genesis of the United States, i. 65 sea. Cf. 
orders of the Virginia council, Ibid., J$. 



EARLY COMMISSIONS. 33 

is worth citing. Delaware was commissioned governor and 
captain-general, with power to enforce martial law, "and upon 
all other cases as well Capitall as Criminall and upon all other 
accidents and occasions there happening, to rule, punish, 
pardone and governe," according to instructions given by the 
council in England, or in default of such instructions by his 
own discretion, or by such laws as he should see fit to enact 
either independently or with the advice of such a council as 
he should think proper to summon; in short, he received 
powers as absolute as the company by its patent could give, 
with the understanding, moreover, that if these powers were 
not sufficient, it would endeavor to meet his wants. 1 Here, 
then, in sweeping terms is a grant of legislative, executive, and 
judicial functions. The commission to Nicolls as governor of 
New York was couched in similar terms, showing that the 
Duke of York invested his deputy with the right of exercising 
all authority granted to himself as proprietor. 2 

These two commissions to Delaware and Nicolls respectively 
furnish the most striking instances of the brevity which was 
characteristic of all the early commissions. 3 Those issued by 
the crown immediately after the overthrow of the Virginia 
Company usually contained a formal grant of authority, a state- 
ment of the governor's military powers as commander-in-chief, 
a few lines regarding the constitution of the council, and 
some instructions of a special and temporary character. Finally, 
the governor was authorized to govern the colony as fully as 
any governor of the preceding five years had done. This vague 
reference to past usage as the measure of the governor's powers 
occurs as late as 1641. 4 Even in the Carolinas and the Jerseys, 
with, their elaborate written constitutions, the commissions 

1 Delaware's commission, Ibid., 376 seq. 

2 Nicolls's commission, Pennsylvania Archives, v. 509. 
8 With the founding of the Carolina and the Jersey colonies a change 

begins, inaugurating a period of elaborate constitutional definitions. 

4 See James I.'s special commission, 1624, in Rymer, Fojdera, xvii. 
618-621 ; commissions of 1625 and 1626 in Chalmers, Political Annals, 
in, 112, and Rymer, Foedera, xviii. 311; commissions to Harvey, 1628, 
1636, Ibid., xviii. 980, xx. 3-5 ; Berkeley's commission, 1641, Ibid., xx. 
484. 

3 



34 EVOLUTION OF THE PROVINCIAL EXECUTIVE. 

were brief enough ; 1 and the prematurely minute definitions of 
their fundamental documents had little or no practical consti- 
tutional value. 2 It was only very gradually that the commis- 
sions and instructions were so enlarged that a more accurate 
definition of powers was made possible. 

The institution of royal governments, expressing as it did 
the nascent conception of the colonies as parts of a large 
political or, to anticipate contemporary phraseology, imperial 
system, contributed toward a more purely political conception 
of the governor's office. In the establishment of these govern- 
ments, the king was but asserting his right and duty to govern 
his subjects; and since the governor was the king's represent- 
ative, this vice-regal position gradually came to determine in 
large measure the powers of the colonial executive. The gov- 
ernor's prerogative was, in theory, the royal prerogative on a 
smaller scale and of course with important limitations. Nor 
was the influence of these new conceptions limited to the royal 
provinces; it was felt to a marked extent in the proprietary 
colonies as well. 

The most noticeable feature of the earlier colonial constitu- 
tions is the absence of anything like the modern political prin- 
ciple of the separation of powers. In the Virginia government 
of 1607, and in Lord Delaware's commission of 1610, there 
was, as we have seen, a union of executive, judicial, and legis- 
lative functions. 3 In Maryland the right of legislation was 
vested in the proprietor and the freemen ; but, in the intervals 
between the sessions of the assembly, the proprietor was 
specially empowered to issue ordinances having the force of 

1 See list of commissions and instructions below, Appendix B. 

2 It is interesting to note, in the youngest of the thirteen colonies, a re- 
turn to the old practice, a repetition of the old vagueness in definition. 
Here, for example, is a contemporary description of Oglethorpe's authority 
in Georgia, quoted from a South Carolina paper : " The general Title they 
give him is Father. ... If any difference arises, he is the Person that de- 
cides it. . . . He keeps a strict Discipline. . . . He does not allow them 
Rum, but in lieu gives them English Beer " (Jones, History of Georgia, i. 
127-128). This statement seems to be quite outside the domain of exact or 
even approximately exact constitutional definitions. 

3 Above, p. 32. 



LEGISLATIVE AND JUDICIAL AUTHORITY. 35 

law, provided that such ordinances should not prejudice the 
rights of persons in life, members, or property. This pre- 
rogative was granted to the governor by the early commissions, 
with the proviso that his enactments were not to be in con- 
flict with laws already in force. Moreover, judicial juris- 
diction in all cases civil and criminal was given him, to be 
exorcised either alone or with his council. 1 

The precedents set in the older colonies were followed else- 
where. In New York, Governor Nicolls was invested with all 
the powers of the proprietor, including the right of legislation, 
which was actually exercised by him either alone or with the 
assent of the council and of the assize of justices, a body of 
lis own nominees whose power could have been hardly more 
than advisory. 2 The Carolina charter, like that of Maryland, 
though it provided for legislation regularly by the proprietors 
with the consent of the freemen, also reserved to the proprie- 
tors or their representatives the right to issue ordinances hav- 
ing the force of law; 3 and the minutes of the governor and 
council show that such ordinances were actually passed. 4 Here 
also the governor and council were given judicial functions. 5 In 
New Hampshire the governor and council were authorized to 
continue the old taxes until suitable provision should be made 
by the assembly; 6 whereupon Governor Cranfield, on the 
failure of the assembly to raise the necessary revenue, took 
advantage of this power and continued the taxes, meeting with 
serious resistance, however, in the attempt to collect them. 7 

1 See Calvert's commissions of 1637 and 1642, in Bozman, History of 
Maryland, ii. 572, 621. Cf. with the language of the charter, Ibid., ii. 9. 

2 See commission to Nicolls, Pe7insylvania Archives, v. 509. Cf. 
charter of 1664, in Poore, Charters and Constitutions, i. 783; Nicolls's 
account, Docunie?itary History of New York (1849), *• %7 > Charter and 
Lazus of Pennsylvania, 3, 44, 53, 66. 

8 Charter of 1663, §§ 5, 6, in Poore, Charters and Constitutions, ii. 1382. 
Cf. the charter of Maryland 

4 Cf., for example, A r orth Carolina Records, ii. 130. 

5 Instructions to Luchtfell, 1691, §§ 15-17. 

6 Commissions to Cutts and Cranfield, New Hampshire Provincial 
Papers, i. 373, 433. 

7 Ibid., 475, 496, 543-544- 



36 EVOLUTION OF THE PROVINCIAL EXECUTIVE. 

The ordaining power was evidently pushed very far in these 
early years of New Hampshire's separate provincial govern- 
ment, for there are complaints that the governor and council 
made laws without the cooperation of the assembly. 1 Here 
also the president and council were endowed by the first 
provincial commission with judicial jurisdiction in all cases 
civil and criminal. 2 Everywhere, then, the governor is found 
exercising functions which are usually considered to be beyond 
the sphere of the executive department of the State. 

The possession of legislative authority by the executive was 
hardly in accord with the old English tradition that legislation 
and taxation should be guarded by a representative body. It 
was not likely, therefore, that this branch of the governor's 
extra-executive power would survive the primitive conditions 
of the first colonial establishments. In Virginia the triumph 
of the liberal element in the company gave to the colony the 
famous assembly of 1619, the first representative body in 
America. 3 This grant was confirmed by the ordinance of 
162 1, and the governor's authority was thus brought within 
more moderate limits. 4 In spite of the existence of an 
assembly, however, the governors seem not to have given up 
their legislative powers at once; consequently in 1624 the 
assembly found it necessary to pass a formal act declaring 
expressly that the governor was not to make laws without the 
consent of the assemb]y. 5 

After the institution of the royal government in Virginia, 
the policy of the crown was for a time uncertain. The early 
commissions said nothing of an assembly ; and the only recorded 
legislation of the next five years which has come down to us is 
in the form of proclamations by the governor. 6 On the other 
hand, it is certain that the assembly did not lapse altogether; 
for there is evidence that in 1627 the king recognized its 

1 See ordinances of governor and council, Ibid., 463, 468, 473, 481 ; cf. 
p. 518. 

2 Commission to Cutts, Ibid., 373. 
8 Colonial Records of Vi7'ginia, 81. 
4 Hening, Statutes, i. no. 

6 Ibid., 124, 129; Chalmers, Political Annals, 63-64. 
6 Hening, Statutes, i. 129-130. 



LEGISLATIVE POWERS WITHDRAWN. 37 

existence and competency by submitting to it certain proposi- 
tions relating to the tobacco trade, to which the assembly 
replied by submitting counter-propositions. 1 The power of 
the assembly was, however, still on a precarious footing. The 
governor continued to assume for himself the rights of taxa- 
tion and legislation, which were again expressly denied by the 
assembly in acts of February and September, 1632. 2 This 
abuse of power by the governor led to his expulsion by the 
colonists; and though he was again forced upon them for a 
time, yet a few years later the king, by his instructions to 
Berkeley, gave to the assembly a formal recognition. 3 After 
the Restoration the same Governor Berkeley was by his first 
instructions directed to call the assembly within one month of 
his arrival in the colony. 4 

The continued existence of some representative body was 
now fairly assured ; but there was still at times a disposition 
to restrict its activity as far as possible. Lord Culpeper was 
directed to summon an assembly only by special direction of 
the crown, 5 and five years passed without any legislative 
sessions. 6 On the other hand, the instruction to Lord 
Howard of Effingham to "recommend" the assembly to allow 
the governor and council, in case of emergency, to impose 
duties, was a clear recognition of the assembly and of its 
exclusive right to determine taxation. 7 The governor, never- 
theless, seems still to have encroached upon the field of legis- 

1 Hening, Statutes, i. 129, 134; Neill, Virginia Carolortcm, $$ ; Sainsbury, 
Calendar of State Papers, Colotiial Series, Ameiica and West Indies, 1574— 
1660, pp. 86, 87, 89, 90. 

2 Chalmers, Political Annals, 118-119; letter of Richard Kemp, in 
Sainsbury, Calendar of State Papers, Colonial Series, America and West 
Indies, 15 74- 1660, p. 207; Hening, Statutes, i. 171, 196. 

8 Berkeley was to summon the assembly once a year, or oftener if urgent 
occasion should require, having " as formerly " a negative voice upon its pro- 
ceedings: Instructions, § 4, Virginia Magazine, ii. 2S1. 

4 Chalmers, Political Annals, 244; Instructions, 1662, § 2, Virginia 
Magazine, iii. 15. 

5 Doyle, English in America, i. 344. 

6 There is, at least, no record of any acts of assembly between 1686 and 
169 1. See Hening, Statutes, iii. 

7 Doyle, English i?i America, i. 349-350. 



38 EVOLUTION OF THE PROVINCIAL EXECUTIVE. 

lation by means of proclamations ; 1 but, with a representative 
assembly controlling the purse, these abnormal features natu- 
rally passed away or became very exceptional. 

In New York, James fought against the change as long as 
he could. In reply to Andros's letter recommending an as- 
sembly, he wrote that assemblies were destructive to the peace 
of governments in which they were allowed. 2 In 1680 occurred 
the Dyer case, in which the officers of the duke were resisted 
in the collection of duties imposed by the latter. 3 The 
Court of Assizes, composed of the governor's own nominees, 
petitioned for a representative assembly; and James finally 
submitted, authorizing Governor Dongan in 1683 to call an 
assembly. 4 This body at its first sessions enacted the so- 
called "Charter of Privileges," which asserted in strong terms 
the exclusive legislative authority of the assembly; 5 where- 
upon James took offence at the high tone assumed by it and 
disallowed the act. 6 The royal commission of 1686 again 
vested full powers of legislation and taxation in the governor 
and council; 7 and in 1688 New York was annexed to the gen- 
eral government of New England, in which the same despotic 
system was already in force. 8 The result of this latter experi- 
ment is too familiar to need repetition here. In New York 
the Andros government went down before the Leisler rebel- 
lion ; whereupon Leisler established a provisional government, 
assumed that the Charter of Privileges was in force, and called 
an assembly. 9 This revolutionary organization was of course 

1 Beverly, History of Virginia, 80, 85. 

2 January, 1676 : New York Documents, iii. 235. 

3 Ibid., 246, 289 ; Chalmers, Political Annals, 582-583. 

4 Wood, Sketch of Long Island, 178; New York Documents, iii. 31 7— 
318; Dongan's instructions, Ibid., 331. 

5 Brodhead, History of New York, ii. 659. 

6 Instructions to Dongan, New York Documents, iii. 370. 

7 Dongan's commission, 1686, Ibid., 377. 

8 Commission and instructions to Andros, Ibid., 537 seq., especially 
538. 

9 Leisler's writs, Documentary History of New York (1849), ii. 282-283 » 
Brodhead, History of New York, ii. 615, 623; New York Documents, iii. 
700, 717. 



INITIATIVE IN LEGISLATION CLAIMED. 39 

overthrown, but the new royal commission definitely recognized 
the assembly. 1 

The Andros commission for the government of New Eng- 
land was the last deliberate attempt to give the governor 
absolute powers in legislation, though in Georgia there was 
certainly for a time a very informal government under Ogle- 
thorpe. 2 Until 1 75 1 there was no representative assembly 
within the latter colony, and the one then instituted was noth- 
ing more than an advisory body. 3 When Georgia became 
a royal government, however, an assembly was regularly 
organized. 

Reference has been made to the power of issuing ordinances 
as exercised in Maryland, the Carolinas, and New Hampshire. 
This power, though certainly actually used in the beginning, 
seems, however, to have been allowed to lapse. 4 In New 
Hampshire, Governor Cranfield's effort to collect the old taxes 
continued by proclamation met, as has been seen, with vigor- 
ous resistance; hence in the commissions given after the 
revolution of 1688 the clause providing for this mode of contin- 
uing taxes was wisely omitted. Nevertheless, the power to 
issue ordinances continued to be exercised, but usually within 
reasonable limits. In two specified cases, namely, in the 
erection of courts and the regulation of fees, the governor was 
invested by his commission with quasi-legislative power; and 
although these rights were practically very much limited by 
the action of the assembly, yet they continued throughout 
the colonial era to be in theory a part of the governor's 
prerogative. 6 

Even after the governor had been forced to give up the 
power of legislating independently, he still claimed for him- 
self, in many cases, a distinctly preponderating influence in 

1 Sloughter's commission, New York Documents, iii. 623. 

2 Wright, Memoir of General J a?nes Oglethorpe, 64. 
8 Jones, History of Georgia, i. 434-435. 

4 For Maryland, see Maryla7id Archives, iii. 103, 129, 194, v. 105 ; Cal- 
vert's commission, 1666, Ibid., iii. 542. For Carolina, see "Grievances of 
the Assembly," in Rivers, Sketch of the Histo?y of South Carolina, 433. 

6 Commission to Bernard, 1758, § 15; instructions, § 44. 



40 EVOLUTION OF THE PROVINCIAL EXECUTIVE. 

the process of legislation. In Virginia the royal instructions 
of 1682 directed that all bills should be drafted by the gov- 
ernor and council. 1 The Maryland proprietor claimed for him- 
self or his governor the sole right of initiating legislation. 2 
In Pennsylvania, Penn's first two constitutions provided that 
all laws should be prepared by the governor and Provincial 
Council; and measures thus prepared were then to be presented 
to the assembly for its simple approval or rejection. 3 A simi- 
lar exclusive privilege was given to the Grand Council, the 
collegiate executive of the Carolina " Fundamental Constitu- 
tions." 4 These claims, however, were uniformly resisted. In 
Maryland, the proprietor, after an unsuccessful attempt to 
force legislation upon the assembly, 5 empowered the governor 
to approve bills presented by that body. 6 The Carolina gover- 
nor and council had for a time, it is true, the initiative in 
legislation; but in 1682 this privilege was restricted by the 
provision that, if the council failed to propose a bill presented 
by a majority of the grand juries, the Parliament might assume 
the .initiative. 7 Later the assembly denied altogether the 
right of the council to initiate legislation, and a prolonged 
deadlock ensued. 8 The instructions of 1691 did not distinctly 

1 Culpeper's instructions, cited by Doyle, English in America, i. 344. 

2 Lord Baltimore, by his commission to Leonard Calvert in 1637, de- 
clared his veto of all laws passed by the assembly, and submitted his own 
code to the freemen for their approval. The governor was thenceforth 
empowered to "propound" legislation to the assembly. See commission 
in Bozman, History of Maryland, ii. 572. 

3 Frames of Government of 1682 and 1683, in Poore, Charters and Con- 
stitutions, ii. 1520, 1527. 

4 Fundamental Constitutions, §§ 50-55, Ibid., 1397. 

5 The assembly rejected the code of laws sent over by the proprietor, 
and passed another set. See Maryland Archives, i. 6, 9, 23. 

6 Ibid., 31. In 1648 the proprietor sent over another set of laws to be 
accepted or rejected as a whole, but the assembly decided not to " meddle" 
with them at all; in the following year the proprietor again urged their 
passage, and some of them were passed, though the assembly still refused 
to enact them in a mass. See letters of the assembly and the proprietor, 
and laws passed, Ibid., 238, 262 sea., 299. 

" 7 Instructions to governor and council at Ashley River, in Rivers, Sketch 
jf the History of South Carolina, 369, 395. 
8 Address to Governor Sothel, Yfotf., 422. 



THE GOVERNOR IN THE ASSEMBLY. 41 

assert this right. 1 Royal instructions like those of the year 
1682 in Virginia were quite exceptional, containing, as they 
did, a grant of power such as was found in none of the royal 
commissions of the eighteenth century. 

In the earliest period of colonization, the governor was 
sometimes a member of the assembly. In the Virginia 
assembly of 1619, governor, council, and assembly all sat 
together, and the governor seems to have made motions like 
an ordinary member. 2 The ordinance of 162 1 declared the 
assembly to consist of the council of state (the governor 
being a member) and two burgesses from each " town, hundred, 
or other particular plantation." All decisions required a 
majority vote, but the governor had, apparently in addition to 
his vote as an individual member, the right of veto. 3 The 
first Maryland assembly was similarly constituted. The gov- 
ernor presided, and his power was further increased by two 
peculiar customs, one of which was the use of proxies. Thus, 
on one division, the governor and one councillor are recorded 
as having cast fourteen votes. 4 There is no indication that 
these proxies were given for particular votes ; they were appar- 
ently used at the discretion of the holder. A second peculiar 
privilege enjoyed by the Maryland governor was that of issu- 
ing to persons not members of the council or regularly elected 
as representatives special writs, giving them the right to sit 
and vote in the assembly. 5 Such votes would under ordinary 
conditions easily be controlled by the governor. The Carolina 
" Fundamental Constitutions " provided that the governor, 
the deputies, the nobility, and the elected representatives 
should all sit together in parliament, except in certain cases 
when they should separate into four houses. The first New 
Hampshire constitution had given the executive power to a 
president and council ; but in view of the fact that by an early 

1 Lud well's instructions, 1691, § 27. Cf. his private instructions, North 
Carolina Records, i. 381. 

2 Colonial Records of Virginia, 9, II, 12. 

3 Ordinance in Hening, Statutes, i. no. 

4 Maryland Archives, i. 4, 9. 

5 Ibid., 128-129; Bozman, History of Maryland, ii. 216. 



42 EVOLUTION OF THE PROVINCIAL EXECUTIVE. 

statute a casting vote in the proceedings of the general assem- 
bly was given to the president, it seems evident that the presi- 
dent, council, and assembly sat as one body. 1 

The first important step toward legislative independence of 
the governor and council gained by the representative element 
in the assembly was the separation of the two houses. Just 
when the division took place in Virginia, it is not easy to 
determine. It has been said that it occurred in Culpeper's 
time; 2 but much earlier than this, in 1666, there is a distinct 
reference to the " house " of burgesses. 3 In Maryland the 
separation of the two houses came very early. In 1642 the 
burgesses requested a separation, which was at first refused ; 
but in 1650 an act was passed providing for a division into 
two houses. 4 In New Hampshire and the Carolinas the single 
chamber system was soon discarded, and the governor and 
council were recognized as an upper house. 5 This division into 
two houses was the general rule in all the colonies except Penn- 
sylvania, where the council lost all its formal legislative powers 
and became, at least in name, simply an executive body. 6 

After the division into two houses, the governor at first 
generally sat either as a member of the upper house or as its 
presiding officer. 7 Hutchinson, in his " History of Massachu- 

1 New Hampshire Provincial Papers, i . 407. 

2 Beverly, History of Virginia, 203. 

8 In that year, Governor Berkeley sent a message to the burgesses de- 
siring that two or more of the council might join with them " in granting 
and confirming the sums of the levy." The burgesses replied that they 
conceived it "their privilege to lay the levy in the house." See Hening, 
Statutes, ii. 254. 

4 Maryland Archives, i. 130, 272. In 1660, Governor Fendall, who 
wished to win popularity at the expense of the proprietary interests, con- 
sented to a reunion of the two Houses, which was then desired by the 
lower House. The latter was then numerically superior to the upper house, 
and had thus something to gain from the change. The reunion, however, 
was only temporary {Ibid., 390, 395 sea..). 

5 See, for example, New Hampshire Provincial Papers, ii. 155 ; North 
Carolina Records, i. 614 ; Case of the Dissenters, 31. 

6 Commission to the council, in Proud, History of Pennsylvania, i. 451 ; 
letter of Hannah Penn, 1724, Ibid., ii. 179. 

7 New Hatnpshire Provincial Papers, ii. 155 (minutes of May, 1695); 



EXCLUSION FROM THE UPPER HOUSE. 43 

setts," : says that Lord Bellomont, who was governor of Massa- 
chusetts in 1699, considered himself the head of the council in 
its legislative as well as in its executive capacity. Hutchin- 
son thought, however, that this claim was the result of the 
unsettled condition of the constitution, and that the governor 
had strictly no right to vote on bills. Sewall's diary repre- 
sents the governor as taking an active part in legislative busi- 
ness. An entry of the year 171 5 refers to a certain tax-bill 
which had been read in the council and which Sewall desired 
to have postponed; but "the governor would have it voted 
then," and the vote was taken. 2 

In 1725 the question as to the governor's right to vote in 
the legislative sessions of the council was referred to the 
crown law-officers, who decided against the governor's claim; 3 
but it is probable that this settlement of the questions at issue 
was not final, for in 1729 Governor Cosby of New York insisted 
on his right to sit and vote with the council. His action, 
however, called out a protest, in consequence of which the 
Board of Trade directed him not to act as a member of tha 
legislative council; and thereafter Cosby' s successors both in 
New York and in New Jersey allowed the council the privilege 
of sitting apart in its legislative capacity. 4 In North Carolina 

Maryland Archives, i. 272, xiii. 329; North Carolina Records, Hi. 310; 
Jones, Present State of Virginia, 63 ; Hartwell, Blair, and Chilton, Present 
State of Virgi?iia, 39. 

1 II. 15, 107. 

2 SewalPs Diary, iii. 47. In Pennsylvania, the governor was himself a 
species of upper house, though the council was usually called upon for 
advice. The governor's right to amend bills was disputed only in financial 
legislation. See Votes of Pennsylvania, i. 129-133. 

8 Chalmers, Opinions, 238. 

4 New York Documents, v. 887, vi. 39. Cosby was succeeded in New 
Jersey by Lewis Morris, who before his appointment as governor had been 
a councillor, and as such had taken a strong stand against the claims of his 
predecessor. On his assumption of the government of New Jersey, he 
made an address to the councillors, promising them the privilege, for the 
first time, of holding their legislative sessions apart from the governor. See 
New Jersey Documents, xv. 4. Cf. Governor Belcher's apparently unsuc- 
cessful attempt to reverse this action, Ibid., vii. 77-81. For New York, cf. 
Smith, History of New York, 310. 



44 EVOLUTION OF THE PROVINCIAL EXECUTIVE, 

there was a similar conflict. Governor Burrington maintained 
that the council always sat in a double capacity, "the two 
capacities never being distinguished," and declared that the 
governor's right to be present at all debates was allowed every- 
where. Here again the council finally gained its point, in 
that it sat apart in legislative sessions and had a separate 
presiding officer. 1 

In 1 739 the South Carolina council declared its independence 
in the following vigorous terms : " The Governor or com- 
mander in chief being present during the debates of this 
House is of an unparliamentary nature, it is therefore resolved 
that we will enter into no debate during such his presence." 2 
Governor Glen protested against this exclusion from the coun- 
cil, and was finally allowed to attend the sessions without 
taking any part in the debates. 3 In 1754, Georgia was organ- 
ized as a royal province with a royal government of the 
strictest sort. The rule there was, — and this rule may be 
taken as an expression of the normal practice of the royal 
governments, — that when the council sat as an upper house, 
the lieutenant-governor, if a member, presided. 4 The council 
was thus, in form at least, an independent legislative house, 
having a distinct presiding officer. 

This was the last step taken during the colonial era in the 
separation of legislative and executive functions. The gov- 
ernor retained a certain part in the process of legislation, first 
through his right of assent or veto, and secondly through his 
influence over the council, an influence which, though weak- 
ened by his withdrawal from the legislative sessions, was still 
strong over a body composed mainly of his own nominees. 

Another branch of extra-executive powers possessed by the 
early governors has already been noted, namely, his judicial 
authority. This was necessarily much limited by the organi- 
zation of a regular system of courts; but the governor and 

1 North Carolina Records, iii. 357, 478, iv. 446. 

2 Letter of Governor Glen, April 11, 1739, m South Carolina Historical 
Society, Collections, ii. 286. 

3 Letter of 1748, Ibid., 303 seq., especially 304. 

4 Stokes, Constitution of the British Colonies, 124. 



THE "PROVINCIAL GOVERNOR:' 45 

council continued in most of the colonies to be the highest 
court of appeal within the province. 1 

The provincial governor, then, never became a purely execu- 
tive officer, inasmuch as he continued to be invested with 
legislative and judicial functions of the highest importance. 
Nevertheless, much had been accomplished in the direction of 
a rational distribution of functions, in that the real control 
of legislation had passed irrevocably into the hands of the 
assembly, and the administration of justice was largely in the 
hands of a regularly organized judiciary. The result of this 
work of definition and separation, imperfect as it was, was the 
royal governor of the eighteenth century. With a few modifi- 
cations, which have been already noted, the proprietary gover- 
nors may properly be included in the same category with the 
royal. Thus, as a general term including both the proprietary 
and the royal governors, the name "provincial governor" will 
serve as a convenient if not precisely accurate title. The 
character of this office in its actual operation will form the 
subject of the succeeding chapter. 

1 See below, ch. vii. 



CHAPTER III. 

THE GOVERNOR'S APPOINTMENT, TENURE OF OFFICE, 

AND EMOLUMENTS. 

The provincial governor of the royal and proprietary colonies 
was appointed by the higher authority in England, though the 
appointment came in the one case from the crown, and in the 
other from a proprietor or a group of proprietors. As has been 
seen already, however, the crown had so far extended its con- 
trol over the proprietary governments that the appointment 
of governors was subject to confirmation by the crown. The 
royal governors, on the other hand, were usually appointed on 
the recommendation of the Board of Trade, by order of the 
king* in council. 1 

The methods by which these appointments were secured 
were similar to those employed in the other departments of the 
British public service in the days of the Whig ascendancy. 
In a report submitted to the Board of Trade in 171 5 there is 
an interesting statement of the principles governing such 
appointments: "Governments have bin sometimes given as a 
reward for Services done to the Crown, and with design that 
such persons should thereby make their fortunes. But they 
are generally obtained by the favour of great Men to some of 
their dependants or relations, and they have bin sometimes 
given to persons who were oblidged to divide the profit of them 

1 See, for example, the record of the proceedings in the case of Josiah 
Hardy, appointed governor of New Jersey in 1761. After the reading of 
the representation of the Board of Trade proposing his appointment, it was 
ordered by the king in council that his appointment be made as proposed. 
The Board of Trade was then directed to prepare the draft of the governor's 
commission, which finally, after its approval by the Privy Council, went to 
the king for his signature. See New Jersey Documents^ ix. 259, 262. 



THE APPOINTMENT OF GOVERNORS. 47 

with those by whose means they were procured. The Quali- 
fications of such persons for Government being seldom consid- 
ered. M1 This is a severe indictment; but it is not difficult to 
find specific cases sustaining these charges. Thus the Duke 
of Newcastle, the great dispenser of public offices in the last 
century, extended his activity to the colonies. In the North 
Carolina records is a list of places said to be in his gift; 2 and 
there is evidence that applications for the use of his influence 
were made to him by anxious candidates for the colonial ser- 
vice. 3 The spirit of this office-jobbing is fairly well illus- 
trated by a letter to the Secretary of State, Townshend, from 
one John Lloyd. This gentleman explained that he had 
resided nine years in South Carolina, " whither he came 
because of ill-fortune in the stocks " ; and he now asked for 
the office either of lieutenant-governor without salary, or first 
of the king's council, saying that "what he ' proposes by it 
is a little power, and perhaps a little profit.'" 4 Chalmers 
asserted that Eliseus Burgess sold his appointment as governor 
of Massachusetts and New Hampshire for the sum of ^iooo. 5 
It is hardly strange, therefore, that under such conditions 
characters like Culpeper and Cornbury were turned loose upon 
the colonies. 

During the latter part of the colonial era, appointments 

1 North Carolina Records, ii. 154^^., especially 158. 

2 Ibid., iii. 80. 

8 Sir William Keith asked Newcastle to use his influence to secure the 
former's appointment as governor of New Jersey {New Jersey Docwnents, 
v. 446). 

4 South Carolina Historical Society, Collections, i. 245. 

5 Chalmers, Revolt, ii. II. The securing of a commission was often a 
very expensive process. Governor Wentworth's commission for New 
Hampshire is said to have cost more than ^300, part of which, at least, was 
spent in getting the commission through the various formal stages after the 
appointment had been made. Various fees had to be paid to different 
functionaries. Jonathan Belcher, who was appointed governor of New 
Jersey in 1747, found that there was great delay in the preparation of his 
instructions, and on inquiry he was told that they were stopped for non- 
payment of fees. He at once deposited ^200, and " this unexpected Supply 
set the Wheels into Motion." See New Hampshire Provincial Papers, 
v. 929 ; New Jersey Documents, vi. 422. 



48 APPOINTMENT, TENURE, EMOLUMENTS. 

were often made on more rational grounds, since, with in- 
creasingly frequent communication between the colonies and 
the mother country, the former naturally exerted increased 
influence upon the choices made by the crown. Thus, at the 
beginning of the eighteenth century, Governor Spotswood 
complained that the councillors had gained an undue sense of 
their own powers from their success in securing the removal of 
two of his predecessors. 1 Furthermore, the practice of send- 
ing agents to represent colonial interests naturally had its 
influence, especially since these agents were often men of con- 
siderable importance. There is one instance, indeed, in which 
the agent sent to present the complaints of the colonists 
against the governor was himself sent back with a governor's 
commission. 2 

The appointment of colonists to the governor's chair was not 
altogether uncommon in the eighteenth century. Of the ten 
royal governors of Massachusetts, four were Massachusetts 
men. New Hampshire men also frequently received the 
appointment of lieutenant-governor in that colony, and after 
New Hampshire became a separate government both her gov- 
ernors were chosen from among the residents of the province. 
On the appointment of the first of these, Benning Wentworth, 
who had been a member of the provincial House of Represent- 
atives, the members of the House expressed their satisfac- 
tion with the choice of one "whose Interest is blended with 
theirs." 3 So in New Jersey, the first governor appointed, after 
the "personal union" of that province with the government of 
New York had been broken, was Lewis Morris, a representa- 
tive colonist. In Virginia and the other colonies, such ap- 
pointments were occasionally made, but the practice was not 
common. 4 Though the conditions on which colonial appoint- 

1 Letters of Governor Spotswood (Virginia Historical Society, -Collections, 
ii.), 285. 

2 This was Governor Belcher of Massachusetts, who had represented the 
assembly in their case against his predecessor Burnet. See Chalmers, 
Revolt, ii. 132. 

8 New Hampshire Provincial Papers, iv. 646, v. 139. 

4 Governor Dinwiddie of Virginia was welcomed because he " formerly 



TENURE OF OFFICE. 49 

ments were made were hardly calculated to secure the best 
results, the names of Spotswood of Virginia, Sharpe of Mary- 
land, Morris of New Jersey, and Hutchinson of Massachusetts 
suffice to show that some provincial governors were neither 
unscrupulous nor inefficient. There were others, too, like 
Burnet of New York and Massachusetts, who showed an honor- 
able willingness to make sacrifices for what they conceived to 
be the public interest. 1 

The governor's tenure of office may be considered under two 
aspects, — that defined by the terms of his commission and the 
practical aspect determined by actual conditions. His legal 
tenure, as stated by the commission, was during the king's 
pleasure, 2 though to this general rule of the royal governments 
there was one striking exception in the first century of the 
colonial era. In 1675 Thomas Culpeper received a commis- 
sion for life as governor of Virginia; this commission, how- 
ever, was forfeited for disobedience to orders, and no more 
royal commissions for life appear. 3 Upon the general prin- 

liv'd amongst Us " and was "well acquanted with the Laws and Constitu- 
tion of our Country " : Dinwiddie Papers, i. 27. 

1 For Burnet's efforts to secure the establishment of a post at Oswego 
by considerable personal advances which were never fully repaid, see New 
York Documents, v. 818, 846. 

2 See Bernard's commission for New Jersey, 1758, § 27; Smith, History 
of New York, 22S. 

8 Patent to Culpeper, in Hening, Statutes, ii. 565. The commission 
given to Lord Delaware by the Virginia Company in 1610 was also a com- 
mission for life (Brown, Genesis of the U?iited States, i. 375). In 1683 the 
proprietors of East Jersey issued a commission to Robert Barclay as gov- 
ernor for life ; and at the same time a deputy-governor was named who was 
empowered to hold office for seven years. In later commissions of the New 
Jersey proprietors the term was stated as one year, or until some other 
appointment should be made (New fersey Documents, i. 423, ii. 87, 301). 
The attempt to fix definite terms of office appears elsewhere. For example, 
the rules of the Virginia Company provided that all colonial commissions 
should be "onely for three yeares in certaine, and afterwards during the 
Compa?iies pleasure"; and that no governor should in any case hold his 
office more than six years (" Orders and Constitutions of the Virginia Com- 
pany," in Force, Tracts, iii. No. 6, p. 19). In the propositions issued by 
the proprietors of Carolina in 1663, it was provided that governors should 
hold office for terms of three years; but the propositions were never carried 

4 



50 APPOINTMENT, TENURE, EMOLUMENTS. 

ciple that the governor's tenure depended on the king's 
pleasure there was a formal limitation, imposed by English 
custom, to the effect that all patents terminated on the death 
of the king. By acts of 7 & 8 William III. and I Anne, it 
was provided that commissions should continue for six months 
after the demise of the sovereign. At the expiration of that 
time the governor's authority lapsed, unless a new commis- 
sion was issued. 1 In any case, the authority of the governor 
ceased on the arrival of his successor and the publication of 
the latter's commission. 2 

What, then, was the real duration of the governor's service 
as affected by the actual facts of the political situation in 
which he was placed? There were many circumstances that 
tended to make his position insecure. In the first place, the 
same sort of influence that gave him his office might be used 
with equal effect by other men : Douglass, a contemporary 
writer, speaks of the governor's position as "very slippery," 
of his liability to be called to account " upon frivolous and 
sometimes false complaints," and to be "superseded by some 
expectant at court." 3 Moreover, party changes in England 
were not without interest for governors in the colonies. A 
letter written by Lewis Morris, governor of New Jersey in 
1742, shows his anxiety lest a probable change of ministry 
might affect his position. 4 

The removal of a governor for real misconduct was never an 
altogether easy task, though the colonial agencies made it 

out (" Proposals of the Proprietors," in Rivers, Sketch of the History of 
South Carolina, 335). 

1 Chalmers, Opinions, 234 seq. 

2 Ibid., 243. 

3 William Douglass, Summary of the First Planting of the British 
Settlements in North America, i. 474. 

4 He thought it " not unnaturall to suppose that those employ'd by the 
last [ministry] may not be look'd on in the most favourable light by their 
successors, and amongst the rest such a reptile as my selfe, (tho' now tread- 
ing on the verge of life & far from being an advocate for arbitrary power), 
may be remov'd to make way for some new man that will think this govern- 
ment worth soliciting for": Morris Pape?s (New Jersey Historical Society, 
Collections, iv.), 145. 



REMOVALS. 51 

possible for the people of the provinces to make themselves 
heard more effectively than would otherwise have been the 
case. As has been seen, Governor Burnet of Massachusetts 
was succeeded in office by the agent who had been sent to 
represent the assembly in its controversy with the governor; 1 
and, though Governor Burnet died in office, the incident illus- 
trates well the influence of some of these colonial agents. 
Belcher himself, Burnet's successor, had occasion later to 
realize the influence which an agent might bring to bear 
against a distant governor, inasmuch as his own removal was 
due very largely to the work of the New Hampshire agent. 2 
Chalmers deplored the extent to which this influence was used 
against unpopular governors. 3 There can be no doubt that it 
was often very effective. During the long periods in which 
the royal and the colonial interests were in almost constant 
conflict, when it was almost impossible, without a violation of 
instructions, for a governor to get his salary or the necessary 
grants for the conduct of government or even the military 
supplies demanded by the crown, his position was trying in 
the extreme. 

Under these circumstances, one would naturally have ex- 
pected a brief and uncertain tenure. There are instances, 
however, which tell against this general view. Massachusetts, 
during the eighty-two years from 1692 to 1774, the period of 
the Province charter, had ten governors with an average term 
of eight years. 4 North Carolina, during the thirty-four years 
of the royal government up to the passage of the Stamp Act, 
had only three governors with an average term of eleven years. 
New Hampshire, after its separation from Massachusetts in 
1 741, had but two governors, the first serving until 1767. 
These terms, however, are longer than the usual duration of 

1 See above, p. 48. 

2 New Hampshire Provincial Papers, v. 915 seq. 

8 " Having reduced to a miserable subservience the governors, they, 
without difficulty, effected their recall, by those arts, which popular conven- 
tions know how to use, either to gratify passion or to extend their privi- 
leges " : Chalmers. Revolt, i. 225. 

4 Two of these, Phips and Burnet, held their commissions at the time of 
their deaths. 



52 APPOINTMENT, TENURE, EMOLUMENTS. 

the governor's service. There is a striking reference to this 
instability in office in a passage in the history of Pennsylvania, 
once erroneously ascribed to Benjamin Franklin: "There is no 
Man, long or much conversant in this overgrown City [London], 
who hath not often found himself in Company with the Shades 
of departed Governors, doom'd to wander out the Residue of 
their Lives, full of the agonizing Remembrance of their passed 
Eminence, and the severe Sensation of present Neglect/' 1 

A governor was usually assigned to a single province; but 
to this general rule there were several exceptions. The policy 
of James II. included not merely the reduction of charter and 
proprietary governments to the uniform royal type, but also the 
consolidation of provinces. Thus the commission to Andros 
in 1688 included not merely New England, but New York and 
New Jersey. This unwieldy province fell to pieces, however, 
with the overthrow of Andros; and, indeed, the attempt to 
consolidate the colonial governments was in the main given 
up, though for a long time it was a common practice to organize 
what may be called "personal unions," by which more govern- 
ments than one were assigned to a single governor. The 
personal unions had certain advantages from a military point 
of view, a circumstance which was especially important in the 
last decade of the seventeenth century, at the opening of the 
great conflict with France for maritime and colonial suprem- 
acy as well as for the maintenance of the European political 
balance. Thus, in 1697 the Earl of Bellomont became gover- 
nor of Massachusetts, New York, and New Hampshire; 2 and 
the appointments to Massachusetts and New Hampshire were 
combined under several of his successors. In 1702 the gov- 
ernments of New York and New Jersey were similarly com- 
bined. Pennsylvania and Delaware originally constituted but 
one government; but the lower counties on the Delaware were 

1 Historical Review of the Constitution and Govermnent of Pennsyl- 
vania (1759), 77- Sometimes a governor after his removal remained in the 
province and joined the opposition (note the case of Keith, Ibid.'). This 
essay, though not written by Franklin, seems to have been published with 
his sanction and cooperation. Cf. Franklin, Works, Bigelow ed., iii. 125- 
126, note. 

2 New York Documents, iv. 261. 



COMBINATION OF GOVERNMENTS. 53 

restive under this arrangement, and finally secured from Penn 
permission to organize a separate legislature. This case is 
different from those just mentioned, in that the two provinces 
of Delaware and Pennsylvania, or rather perhaps the two 
divisions of the one province, had a common executive, with a 
joint council for both divisions. 1 In the other provinces above 
referred to, the union was merely personal : the same person 
who held the office of governor in one province held also the 
entirely distinct office of governor in the other. 2 

This combination of governments proved awkward in prac- 
tice; for the governor maintained his regular residence in 
the larger province, and naturally his long periods of absence 
from the smaller colony led to grave difficulties. 3 The people 
of New Jersey, for example, felt strongly that their province 
was neglected by its absentee governors. 4 In New Hampshire 
also serious irregularities arose. 5 Indeed, in both colonies the 
situation gave rise to complications in the relations between 
governor and lieutenant-governor, especially in regard to the 
powers that might properly be exercised by the lieutenant- 
governor in the absence of the governor. 6 The chief diffi- 
culty of the system, however, lay in the fact that adjacent 

1 Charter of 1701, in Poore, Charters and Constitutions, ii. 1536; Penn- 
sylvania Records, iii. 18, 143, 253, 254. 

2 This experiment was also tried for a time in the Carolinas (see com- 
missions of 1691, 1693, 1694, and 1702). The governor, who resided in one 
province, might appoint a deputy in the other. In 17 12 the two govern- 
ments were separated. See South Carolina Historical Society, Collections, 
i. 128, 134, 136, 212; North Carolina Records, i. 554, 841. 

8 Governor Cornbury of New York is said to have been absent from 
New Jersey nine months of the year (" Address of the New Jersey 
assembly," New Jersey Documents, iii. 242). Governor Dudley of Massa- 
chusetts and New Hampshire resided in Boston, and visited New Hamp- 
shire for only comparatively short periods (Chalmers, Revolt, i. 325). 

4 New Jersey Documents, iii. 242-243, iv. 132-133. 

8 " Having determined to reside at Boston, the metropolis of the most 
powerful colony, he [Governor Dudley] adopted a mode of administration 
for New Hampshire, which promoted his profit without disturbing his ease. 
. . . In the principal Independents ... he placed all power; as he allowed 
them to govern themselves, they procured for him, in return, a salary of one 
hundred and fifty pounds a year " (Chalmers, Revolt, i. 325-326). 

6 See below, pp. 56, 57. 



54 APPOINTMENT, TENURE, EMOLUMENTS. 

provinces, like New York and New Jersey, or Massachusetts 
and New Hampshire, often had interests at variance with each 
other. The New Jersey agent, in arguing for an independent 
New Jersey government, declared that a governor deriving his 
chief support from New York could not be induced to pass 
acts affecting unfavorably New York interests. 1 The people 
of New Hampshire felt that Governor Belcher, in a contro- 
versy between the two provinces in regard to boundaries, had 
shown great partiality to the larger province, and had grossly 
abused his powers as governor of New Hampshire in order to 
secure a decision favorable to Massachusetts. 2 

The feeling in New Jersey and New Hampshire finally 
became too strong to be disregarded. On the death of Gov- 
ernor Cosby in 1736, New Jersey presented several addresses 
praying for a separate government; and in 1738 Lewis Morris, 
formerly chief -just ice of New York, was made governor. 3 In 
1 74 1 Governor Belcher of Massachusetts was removed, and in 
the same year a separate governor was appointed for New 
Hampshire. 4 From this time on the policy of personal unions 
was abandoned. 

The newly-appointed governor, on his arrival in the province, 
published his commission, and then took the necessary oaths 
in the presence of the council. The proceedings were some- 
times attended with considerable ceremony. Sir William 
Phips, the first governor of Massachusetts under the new 
charter, was conducted to the town-house by the military com- 
panies of Boston and Charlestown, and by the magistrates, 
ministers, and principal gentlemen of Boston and adjacent 
towns. 5 The oaths prescribed for the governor were numerous 
and of various kinds. The first was the simple oath of office. 
The following was the oath administered to the governor of 
New Hampshire in 1742: "You . . . Swear that you will 

1 New Jersey Documents, v. 453. 

2 See accounts in New Hampshire Provincial Papers, v. 915-921 ; 
Hutchinson, History of Massachusetts, ii. 349-350. 

3 New Jersey Documents, v. 435, 441, 450, vi. 1. 

4 New Hampshire Provincial Papers, v. 135, 915-921. 
6 Hutchinson, History of Massachusetts, ii. 20. 



PROVISION FOR VACANCIES. 55 

faithfully & Trucly perform the Trust reposed in you by his 
Majesty's Comission and that you will administer Justice 
equally and impartially in all cases that shall come before you 
in judgment. So help you God." Other oaths had to do 
with the governor's duties to the central colonial administra- 
tion, his allegiance to the crown, and his ecclesiastical obli- 
gations. He was required to take the oaths of allegiance and 
supremacy, to declare his fidelity to the Protestant succes- 
sion, and to deny that there was any transubstantiation in the 
sacrament of the Lord's Supper. Finally he swore to enforce 
the various acts of Parliament relating to the colonies, espe- 
cially the navigation laws. 1 

Ordinarily the governor was expected to reside within the 
province. Indeed, in 1680 an order in council was issued for- 
bidding colonial governors to absent themselves from their 
provinces without leave; 2 and it afterward became customary 
to insert in the governor's instructions a clause forbidding 
him to come to Europe without special permission from the 
crown. 3 

Careful provision was made for the temporary succession in 
case of the governor's death or departure from the province. 
The earlier practice had been by no means uniform; 4 but 
gradually a rule was adopted for the royal governments, pro- 
viding that, if the governor died or left the province, his place 
was to be taken by the lieutenant-governor, or in some cases 

1 New Hampshb-e Provincial Papers, v. 592. See also commission 
to Bernard of New Jersey, 1758, § 3; and instructions to Allen of New 
Hampshire, 1692, p. 63; to Cornbury of New Jersey, 1702, p. 490; to 
Dudley of Massachusetts, 1702, p. 102; to Dobbs of North Carolina, 1754, 
§ 2 ; to Dunmore of Virginia, 177T, § 2. 

2 Doyle, English in America, i. 349. The proposed Virginia charter 
of 1676 insisted either on residence in the colony or on the appointment of 
a deputy (Hening, Statutes, ii. 532). 

3 Instructions to Bernard, §89; to Dunmore, § 89; to Dobbs, § 130. 

4 According to the first royal commissions in Virginia, the councillors 
were to elect a substitute (see commissions of Yeardley and Harvey, in 
Rymer, Fcedera, xviii. 311, 980). This rule was at first followed in the 
Carolinas (Ludwell's instructions, 1691, § 34). The early Maryland gov- 
ernors were allowed to appoint their own deputies (Calvert's commission, 
1637, in Bozman, History of Maryland, ii. 572 ; cf. Ibid., 293-307). 



56 APPOINTMENT, TENURE, EMOLUMENTS. 

by a commander-in-chief. In the absence of any lieutenant- 
governor or commander-in-chief, the rule as at first laid down 
provided that the council as a whole should assume the govern- 
ment ; 1 but this plan was found to have its disadvantages, and 
therefore in 1707 Queen Anne issued a new general instruc- 
tion providing that thereafter the senior councillor should 
execute the commission in the governor's absence. 2 How far 
this instruction was carried out is not quite clear; Chalmers 
says that even in the royal governments it was not universally 
enforced until the reign of George III. 8 It is certain that in 
the proprietary province of Pennsylvania the council continued 
to act as a whole in the absence of the governor; 4 and that in 
at least one of the royal governments the royal order met with 
direct resistance. The Massachusetts council held that the 
rights of government, in the absence of the governor and lieu- 
tenant-governor, were vested in the council as a whole; and it 
therefore disregarded the instruction which transferred its 
right to the senior councillor. 5 

The lieutenant-governor received a commission defining 
very briefly the powers and duties of his office. 6 He was 
authorized to exercise all the governor's powers in the latter's 
absence, subject to instructions and orders from the crown, and 
subject also to the orders and directions of the governor. In 
ordinary cases these provisions furnished very little matter for 
dispute; but in the case of the so-called personal unions, which 
involved long absences on the part of the governor from one or 
the other of his two governments, they gave rise to very serious 

1 Commission to Cornbury of New Jersey, 1702, p. 499; Massachusetts 
Charter of 1691, in Poore, Charters and Constitutions, i. 942. 

2 Royal order of May, 1707, SewalVs Diary, iii. 33. Cf. Dudley's 
instructions of 1702, p. 115; commission to Bernard of New Jersey, 1758, 
§ 26. Members ex officio only were excluded. 

3 Chalmers, Revolt, i. 410. 

4 Pennsylvania Records, iv. 47; Statutes at Large of Pennsylvania 
(1896), ii. 190, 436. 

6 Hutchinson, History of Massachusetts, ii. 191 ; SewalVs Diary, iii. 

35-38. 

6 See commission to. Wentworth. of New Hampshire, I7i7>in Appendix 

A below. 



LIEUTENANT-GO VERNORS. 5 7 

difficulties, which may best be illustrated by specific examples. 
Lord Cornbury, governor of both New York and New Jersey, 
spent the larger part of the year in New York, and hence was 
absent from his province of New Jersey during that time. 
The question arose as to whether his absence was of the same 
nature as that for which the commission provided, by stating 
that the lieutenant-governor should exercise the authority of 
the governor during the latter' s absence from the province. 
Cornbury held that while he was in New York, the lieutenant- 
governor had no power to act in New Jersey, basing his argu- 
ment upon the fiction that while he was present in either of 
his provinces he was to be regarded as legally present in both. 1 
As Cornbury was strong enough to enforce his views, the 
lieutenant-governor became a mere nonentity, and the province 
was reduced to the necessity of being without a resident execu- 
tive head during the greater part of the year. 2 Precisely the 
same dispute arose in New Hampshire, where Governor Shute 
claimed that during his absence from New Hampshire he was 
still entitled to exercise his full powers. In this case the 
home government seems to have sided with the governor, for 
the refractory lieutenant-governor was removed and a successor 
appointed. 3 The same difficulty recurred when Jonathan 
Belcher was governor of New Hampshire and Massachusetts; 
and the home government again seems to have taken the gov- 
ernor's side. 4 The question ceased to have practical impor- 
tance only when independent governors were assigned to New 
Jersey and New Hampshire. 

In exceptional circumstances the lieutenant-governor re- 
mained in charge of the province for considerable periods of 
time. In Virginia, for example, titular governors were at 
different times appointed, who held the title and part of the 
emoluments of the office, while they left the actual conduct of 

1 New Jersey Docu?nents, iii. 1 09-1 11. 

2 Ibid., 242 seq. 

8 New Hampshire Provincial Papers, iii. 704 seq. Lieutenant-Governor 
Wentworth says that he was empowered by the governor to dissolve the 
assembly "if he saw meet" {Ibid., iv. 44). 

4 Ibid., 669. 



58 APPOINTMENT, TENURE, EMOLUMENTS. 

government in the hands of a resident lieutenant-governor. 
The salary actually received by this resident governor was, 
sometimes at least, the result of a bargain between him and 
his nominal superior in office, though fortunately this trading 
was not common in the continental colonies. 1 

Except as a possible temporary successor of the governor, 
the lieutenant-governor had not regularly any independent 
powers; in some provinces indeed, especially in the smaller 
ones, there was often no lieutenant-governor at all. 2 Some- 
times, but by no means always, the lieutenant-governor was a 
member of the council or its president; 3 but in general his 
office seems to have been one of comparatively little impor- 
tance. It is therefore hardly strange that such an officer, 
without any definite political sphere, should at times have 
been a discordant element in the provincial constitution, as 
was in fact often the case. 4 

When, in the absence of both governor and lieutenant-gover- 
nor, the government was assumed by the council or by the 
senior councillor, certain constitutional limitations were im- 
posed. For example, the instructions forbade this provisional 

1 In 1704 the Earl of Orkney was appointed titular governor of Virginia, 
and held this office for more than thirty years. The lieutenant-governor for 
the time being made special agreements with the earl for a division of the 
salary and other emoluments of the office. Orkney was succeeded in this 
titular office by Lord Albemarle, and by Lord Loudoun, the unlucky British 
commander in the French and Indian War. In 1768, Lord Botetourt was 
appointed governor. He took up his residence in the province ; whereupon 
the line of titular governors of Virginia came to an end (Campbell, History 
of Virginia, 375, 556; Oldmixon, British Empire in America, i. 400 ; Din- 
widdie Papers, i. 383, ii. 2, 411 ; Bancroft, History of the United States, iii. 
298). A similar case occurred in Maryland, where, though " Franks was 
appointed governor, Hart was continued in command" (Chalmers, Revolt, 
ii. 66-67). 

2 In the proprietary colony of Pennsylvania, the proprietor himself was 
the governor-in-chief. His representative in the colony usually bore the 
title of deputy-governor or lieutenant-governor, though he was commonly 
referred to as governor. See Proud, History of Pennsylvania, ii. 5. 

3 New Hampshire Provincial Papers, iii. 661, 674. 

4 Notice, for example, in New Jersey, Governor Belcher's feeling about 
Lieutenant-Governor Pownall : New fersey Documents, viii. (2) 190. See 
also New Hampshire Provincial Papers, iv. 669. 



THE GOVERNOR'S SALARY. 59 

government, without a special order, to pass any acts not 
immediately necessary, or to dissolve the assembly, or to 
remove any officers without the consent of at least seven 
councillors. In any of these cases, immediate notice was to be 
given to the home government. 1 The exclusion of the Penn- 
sylvania council from any direct participation in legislation 
scorns to have held good even in the absence of the governor. 2 

The governor's support was provided in a variety of ways; 
but the most important part of his income was his salary. At 
the close of the French and Indian War, this salary was 
dependent on temporary, and often annual, grants of the 
assembly, though to this general rule four important excep- 
tions must be noted. In Virginia and Maryland the assem- 
blies had been induced to make permanent grants to the crown 
and the proprietor for the support of the provincial govern- 
ment, and had thus lost their power to determine the gover- 
nor's salary. 3 In North Carolina, both under the proprietors 
and under the crown, the salary was paid out of the somewhat 
uncertain and fluctuating quit-rent revenues of the province. 4 
In Georgia, the youngest of the colonies, the provincial estab- 
lishment was maintained by the government in England. 5 
This is a summary statement of the results of a long and bitter 
controversy over the question as to whether salary grants 
should be temporary or permanent, a question of the utmost 
importance, involving the relations of the governor to the 
assembly on the one hand, and to the home government on the 

1 See instructions to Bernard of New Jersey, 1758, § 90; to Dobbs of 
North Carolina, 1754, § 131 : to Dunmore of Virginia, 1771, § 90. 

2 Pennsylvania Records, iv. 47. 

8 For Virginia, see Hening, Statutes, ii. 466, iii. 344, 490. For Mary- 
land, see Bacon, Laws, 1692, ch. 4, and 1704, ch. 42; McMahon, History of 
Maryland, i. 178-180. The governor seems also to have received special 
grants (Bacon, Laws, 1747, ch. 25). 

4 See instructions to the receiver-general, 171 2, in Hawks, History of 
North Carolina, ii. 402; Chalmers, Revolt, ii. 165, 195-196; North Carolina 
Records, iii. 295, iv. 164, v. 20, 77, 114, 788. 

5 Stokes, Constitution of the British Colonies, 139. Cf. Jones, History 
of Georgia, i. 511, ii. 78; and schedules of appropriations for salaries (con- 
taining no provision for governor's salary), in Jones, Colonial Acts of 
Georgia, 230, 250 seq. 



60 APPOINTMENT, TENURE, EMOLUMENTS. 

other. 1 The history of this issue may properly be considered 
later in connection with the systematic study of the mutual 
relations of governor and assembly. 

The amount of the governor's salary varied; and it is often 
difficult to estimate with the slightest approach to accuracy the 
real value of amounts that are stated in currency in various 
stages of depreciation. The largest salary was perhaps that 
received by the governor of Virginia, who was allowed ^2000 
out of the duty of two shillings per hogshead levied on tobacco. 2 
The governor of New York in 1766 received a grant of .£2000. 3 
In the other colonies the salaries, as a rule, were ^1000 or 
less in sterling money, though they are often stated at much 
higher rates in the depreciated colonial currency. 4 

In addition to the salary, the governor had various other 
sources of income. The most important of these were perhaps 

1 For results in New York, Massachusetts, and New Hampshire, see 
below, ch. ix. For Pennsylvania, see Proud, History of Pennsylvania, 
ii. 32 ; Pennsylvania Records, ii. 492, iii. 174; Votes of Pennsylvania, v. 18, 
35. 'For South Carolina, see Chalmers, Revolt, ii. 168-174; South Caro- 
lina Historical Society, Collections, ii. 135; Cooper, Statutes, iv. 63, 137. 
For New Jersey, see Allinson, Acts of Assembly, chs. 180, 183, 214, 228, 
238, 249, 252, 262, 274 ; Belcher's answers to queries of the Board of Trade, 
New fersey Documents, viii. (2) 86; cf. also Ibid., vi. 443, 445, ix. 384. 

2 See instructions to Dunmore, 1771, § 88. 

3 New York fournal of Assembly, ii. 791, 810. For Maryland, see 
Sharpe's Correspondence, Maryland Archives, vi. 433, ix. 47. For North 
Carolina, see Colonial Records, iv. 164, 585, v. 20, 77. In North Carolina 
the governor's salary varied from ,£700 to ^1000; but it was often collected 
with extreme difficulty, if collected at all. For Georgia, see Jones, History 
of Georgia, i. 511, ii. 78. The salary here was at first £600, and later 
;£iooo, with the advantage of being secure and not dependent on the favor 
of the assembly. 

4 In South Carolina the salary for 1744 was ^500, with an allowance of 
;£ioo for house rent. The same salary was given in 1766. The amounts 
recorded in 1758 and 1760 — ,£3500, with ^700 for house rent — are evi- 
dently stated in the depreciated currency (see South Carolina Historical 
Society, Collections, ii. 189, 287; Cooper, Statutes, iv. 63, 137). Governor 
Shirley of Massachusetts received ^1300 per annum from 1754 to 1756. In 
1748 he had refused ^1900, on the ground that it was not the equivalent of 
the ;£iooo sterling required by his instructions ; and he finally succeeded in 
getting ^2400 in the colonial currency {Massachusetts Province Laws, iii. 
450-454, and 1 754-5, ch. 6 ; 1755-6, ch. 5). 



FEES, AND OTHER PERQUISITES. 6 1 

the fees, which were collected on a great variety of occasions. 
The character of these fees may best be illustrated by a specific 
instance. In 1748 the New Jersey assembly passed an act 
fixing the governor's fees, among which were fees for marriage 
licenses, for letters of administration, for certificates of vessels, 
for certificates to persons desiring to go beyond sea, for 
licenses to purchase land of the Indians, for bills of health 
when required, for putting the governor's seal to a township 
patent, for attorneys' licenses, and for certain judicial pro- 
ceedings in error. The amounts varied from the three shil- 
lings required for a writ of error, to the twenty shillings 
collected for every attorney's license to practise; the marriage 
license fee was ten shillings. 1 

In the beginning, these fees seem not to have been fixed by 
law. 2 Many of them were apparently regulated simply by 
"English custom," a vague limitation clearly liable to great 
abuse. Thus the South Carolina assembly complained that 
public officers were taking much larger fees than were "allowed 
by act of Parliament in England for the same & like things, 
and before the same be settled by act of Assembly here." 3 
Although the governor was authorized, with the advice of his 
council, to regulate all fees of provincial officers, yet in many 
cases, as will be seen, the assembly took the matter into its 
own hands and passed acts regulating official fees, including 
those of the governor. 4 

Among other perquisites commonly allowed to the governor 
was a share of the fines and forfeitures, — usually a third, 

1 Allinson, Acts of Assembly, ch. 210. In Virginia there were fees of 
twenty shillings for a marriage license, of thirty-five shillings for a licensed 
"ordinary," and of forty shillings for a patent of naturalization (Hening, 
Statutes, iii. 397, 434, 445)- 

2 The New Hampshire law of 4 George II. expressly says that gover- 
nors' fees have not previously been regulated : Acts and Laws of New 
Hampshire (1771), ch. 108. 

8 Rivers, Sketch of the History of South Carolina, 434. 

4 See below, pp. 118 seq. Particular fees were also provided for by partic- 
ular acts. For example, the Maryland Naturalization Act of 1692 allowed 
the governor a fee of £3 for drawing a patent of naturalization (Bacon, 
Laws, 1692, ch. 6). 



62 APPOINTMENT, TENURE, EMOLUMENTS. 

sometimes a half. For example, one third of the seizures and 
forfeitures of vessels for violation of the navigation acts went 
to the governor; 1 and similar provisions were made by acts of 
the various colonial assemblies. 2 The most peculiar perquisite 
received by a colonial governor was one which seems to have 
been a curious survival of the old feudal right of escheat. 
This was a provision of a Delaware law of the twenty-fourth 
year of the reign of King George II., by which the property of 
persons dying intestate was to go to the governor. 3 The gov- 
ernor also frequently received from the assembly presents or 
grants for special services. Thus, in 1742, the New Hamp- 
shire assembly voted the governor a present of .£500 for " the 
charge he has been at in coming to the Government &c." 4 In 
spite of royal objections, 5 the practice continued. Governor 
Shirley of Massachusetts was granted ,£250 for his special 
services with the Indians on the Kennebec; 6 and on Governor 
Pownall's departure for England, in 1760, the General Court 

made him a present of ^200. 7 

■ 

1 Statutes at Large, iii. 268 (15 Car. II., c. 7, § vi.); vi. 117 (12 Geo. II., 
c 30, § v.) ; vii. 465 (4 Geo. III., c. 15, § xlii.). 

2 The following list, taken from the Delaware laws, illustrates the general 
character of these perquisites : the governor received forfeitures for neglect 
of official duty ; for violation of quarantine regulations ; half the penalty for 
speaking in derogation of courts ; the fines of attorneys practising without 
licenses ; half the forfeitures for bribery ; and half the penalty of ^200 in- 
curred by sheriffs who served more than three years {Laws of Delaware, 
1797, i. 58, 98, 120, 133, 148, 165). In Virginia, one third of the fines for 
violation of the provincial duty acts commonly went to the governor (Hen- 
ing, Statutes, iv. 147, 315). 

8 Laws of Delaware (1797), i. 295. 

4 New Hampshire Provincial Papers, v. 623. In 1696 the governor of 
Maryland was at his own request presented with a piece of land in Annap- 
olis. A few years earlier the governor had received from the assembly 
20,000 pounds of tobacco, " as a Token of their love, Respect and Esteeme 
for his hono r " (Bacon, Laws, 1696, ch. 24, § 9; Maryland Archives, 
vii. 47). 

5 General instruction of 1703, New Hampshire Provincial Papers, iii. 
251. Cf. instructions to Hunter of New York, § 28. 

6 Massachusetts Province Laws, iii. 836. 

7 Ibid., iv. 336. In regard to a gift to the governor of North Carolina, 
see Colonial Records, iii. 49. In some of the colonies a special house was 



THE GOVERNOR'S INCOME. 63 

The amount of the governor's income in any given case 
cannot be exactly stated. The governor of Virginia was per- 
haps the most fortunate in his receipts, at least when he was 
not obliged to share the spoils with some titular governor 
across the sea. Lieutenant-Governor Dinwiddie was able to 
allow to his absentee superior, Lord Albemarle, the sum of 
^1665 ; and assuming, as on the whole seems reasonable, that 
his own return was equal to that of other governors, the total 
income attached to the office may have been over ,£2600, and 
could hardly have been less than ,£2500. * The only estimate 
at hand for Virginia simply gives the amount as between 
£2000 and ,£3000. 2 In a few cases, however, it is possible to 
get somewhat more definite estimates. Thus Burnaby, in his 
"Travels," 3 gives the governor of Massachusetts an annual 
income, including perquisites, of about ^1300 sterling. An 
interesting view of this financial aspect of the governor's office 
is given in some correspondence between Governor Sharpe of 
Maryland and his brother, William Sharpe, in England. The 
governor, after thanking his brother for his efforts to procure 
for him the government of New York, then considers prudently 
the financial returns of that post. It seems that William 
Sharpe had been informed on good authority that the New 
York government was not worth more than ^1600, though it 
was commonly rated much higher, a circumstance apparently 
due to the fact that the profits of the office had been lessened 
by the diminution in the amount of land remaining to be 
granted by the governor. Governor Sharpe therefore concluded 
that, on the whole, an exchange would not be desirable, espe- 
cially as the New York governor was dependent on the 
assembly. 4 

reserved for the governor : for Virginia, see Hening, Statutes, iii. 285 ; for 
South Carolina, Cooper, Statutes, ii. 380; for North Carolina, Martin, 
IredelVs Public Acts, i. 55; for Maryland, Bacon, Laws, 1742, ch. 24; for 
New York, Rogers, Concise Account of North America, 65. 

1 Dinwiddie Papers, ii. 534. 

2 History of the British Dominions in North America, pt. ii. 132. 
8 Page 139. 

4 Sharpe's Correspondence, Maryland Archives, ix. 47-48, 85. The gov- 
ernment of New Jersey seems to have been one of the least profitable. It 



64 APPOINTMENT, TENURE, EMOLUMENTS. 

In addition to these sources of income, it is probable that 
unscrupulous governors found other ways of enriching them- 
selves, sometimes perhaps without resorting to direct dis- 
honesty. 1 In general, then, the provincial governors seem to 
have been quite liberally paid, especially if we compare their 
incomes with those of our present State governors. 2 

is said that, while New Jersey was combined with New York, the gover- 
nor's expenses in passing from one province to the other equalled, if they 
did not exceed, the profits of the New Jersey office (letter of Lewis Morris, 
New Jersey Documents, v. 315). Governor Belcher declared this govern- 
ment to be one of the least profitable in the king's gift {Ibid., viii. (2) 176); 
Burnaby estimates it as worth from ^800 to ^1000 {Travels, 102). 

1 See Belcher's letter, New Jersey Documents, viii. (2) 175. 

2 For example, the estimated income of the royal governor of Massa- 
chusetts was ,£1300, while the salary of the governor of that State was until 
very recently only $5000. In the absence of the governor, the lieutenant- 
governor or the president of the council was regularly to receive one half of 
the salary due to the governor. See instructions to Bernard of New Jersey, 
I 75%> § 91 ; to Dobbs of North Carolina, 1754, § 132; to Dunmore of Vir- 
ginia, 1771, § 91. 



CHAPTER IV. 

THE GOVERNOR AS THE AGENT OF THE HOME 

GOVERNMENT. 

The provincial governor may be considered from two distinct 
standpoints. On the one hand, he was the centre of the local 
administration, the chief executive of the province; on the 
other hand, he was the agent of a higher authority, the guar- 
dian of interests broader than those of his single province. As 
will be seen later, it was not always easy, or even possible, to 
keep in harmonious action the two forces of local feeling and 
imperial interest. Indeed, their inevitable conflict constituted 
the chief difficulty of the governor's position, and gives to this 
study henceforth its chief interest. Neither aspect of the 
office can be ignored ; in fact, even for purposes of discussion, 
it is not easy to separate the one from the other, inasmuch as 
there was hardly an important function exercised by the gov- 
ernor in which he did not act in both of these characters. 
For the sake of convenient classification, however, the gov- 
ernor may first be considered primarily as the agent of the 
central authority in England. 

In this character, his first duty was to serve as a means 
of communication between the province and the home gov- 
ernment. The governor, for example, recommended to the 
colonial assembly the legislation desired by the crown; 1 
furthermore, he was expected to keep the home government 
informed on a wide range of topics connected with the condi- 
tion of the province and with its administration. The instruc- 
tions to Governor Bernard of New Jersey, in 1758, will serve 

1 See below, p. 161. 
5 



66 GOVERNOR AS AGENT OF HOME GOVERNMENT. 

as a convenient illustration. He was required, first, to give 
full information regarding the natural and economic conditions 
of his province, including a map of the country with an exact 
description of the territory and the settlements upon it. Sta- 
tistics of population and some account of commerce and indus- 
try were also required of him ; and, further, the wants of the 
province were to be pointed out and means of improvement 
suggested. Again, it was important that the home government 
should be informed as to the military strength of the colonies. 
The governor was, therefore, to send an inventory of the mili- 
tary stores in the province, and to report exactly on its state 
of defence, giving some account of its neighbors and its rela- 
tions with them, whether these neighbors were Indians or 
colonists from foreign countries. The civil administration 
was another subject on which full information was desired; 
therefore the accounts of the public revenue and lists of all 
officers employed at the public charge were to be submitted to 
the government in England. Moreover, as it was especially 
important that the progress of legislation should be exactly 
reported, the governor was required to transmit, for the 
approval of the crown, not only the statutes actually passed, 
but also a complete record of legislative proceedings as em- 
bodied in the journals of the council and assembly. 1 

Here, then, was provision for a system of official returns 
which, if faithfully and intelligently made, must have been of 
great value. Several valuable reports, it is true, were made 
by various governors in regard to the condition of their respec- 
tive provinces; but it is clear that on the whole this duty of 
informing the home government was very much neglected. 
In 171 2 Attorney-General Edward Northey declared that the 
governors did not observe the instruction requiring them to 
send home all laws of the provincial assemblies, referring in 
particular to one case in which an act of 1706 had not been 
received till 171 i. 2 In 1732 the Board of Trade made a 
similar complaint; 3 and in 1745 the same body declared that 

1 Instructions to Bernard of New Jersey, 1758, §§ 28-31, 51, 68, 81-87. 

2 Chalmers, Opinions, 348. 
8 Chalmers, Revolt, ii. 119. 



THE DEFENDER OF IMPERIAL INTERESTS. 6j 

it was then more than three years since they had received any 
letters from the governor of North Carolina, and that he had 
been equally negligent in sending other public documents 
required. These complaints were repeated three years later. 1 
The system of reports by governors was certainly very far 
from being what the instructions promised. 

The provincial governor also stood in certain important rela- 
tions to the officers of the royal service in the colonies. Of 
these officers there was a large number. For example, the 
"Description of South Carolina," attributed to Governor 
James Glen, enumerates the surveyor-general of land, the 
receiver-general of quit-rents, various admiralty officers, and 
the officers of the royal customs. 2 The governor was of course 
expected to support these officers to the best of his ability ; but 
he was also required to suspend them from office, if necessary, 
making temporary appointments to fill vacancies until the 
royal pleasure should be known. 3 

In general, then, the governor was the regularly-constituted 
guardian of royal and British interests. It was his duty, not 
only to recommend desired legislation, but also to prevent the 
passage of all acts injurious to the interests of the crown and 
of the mother country. 4 He was to cooperate in the great 
military operations of the British government, and as far as 
possible to enlist the assembly of his own province in support 
of them. Whenever the provincial interest and the imperial 
interest — if we may use these phrases — should come into 
conflict, his controlling obligation was to be his duty to the 
crown. The traditional view in regard to the office is well 
illustrated by the declaration of Governor Benning Wentworth 
to the New Hampshire assembly: "My firm attachment to his 
Maj tys p erson family & Government challenges my first atten- 

1 North Carolina Records, iv. 756, 870. In 1742 the Board reported 
that, during the years 1 730-1 738, the governor of New York had sent over 
only the minutes and the laws of 1730, six acts of 1733, an d some minutes 
of the council for 1736 {Morris Papers, 150). 

2 Carroll, Historical Collections, ii. 221. 

8 See, for example, instructions to Bernard of New Jersey, 1758, § 45. 
4 See below, pp. 162 sea. 



68 GOVERNOR AS AGENT OF HOME GOVERNMENT. 

tion — my next Pursuit shall be the Peace & Prosperity of his 
Maj^ 8 good subjects of this Province." 1 

In addition to these various ways in which the governor 
acted as the representative of the king, the extension of parlia- 
mentary control over the colonies imposed upon him a gradu- 
ally increasing number of functions of another sort, connected 
with the enforcement of acts of Parliament. One of the first 
navigation acts, the well-known statute of 12 Charles II., 
required the governor to take an oath to enforce all the pro- 
visions of the act, under penalty of removal from his office. 2 
Another act of 15 Charles II. gave a fuller statement of the 
governor's duties, providing that persons importing goods into 
the colonies were to give their names and inventories to the 
governor, or to some person authorized by him, and that no 
vessel was to be unloaded until the master had notified the 
governor of its arrival and its name, and given evidence that it 
was of English build. To other penalties attending violations 
of this act, was added one for disobedience on the part of the 
governor, by which he was to be permanently disqualified for 
service as a royal governor, and to forfeit .£iooo. 3 The act of 
7 & 8 William III. continued these penal provisions as to 
removal from office and forfeiture for violation of the statute. 
As these duties were imposed on proprietary as well as on 
royal governors, the act of 7 & 8 William III. required that 
all proprietary governors should be approved by the crown; 
and it was furthermore customary to ask of them special secur- 
ity for the observance of the acts of trade. 4 

Duties of the same sort were imposed by various acts of 
Anne and the Georges. For example, the act of 23 George 
II. prohibited the building and working of factories of iron 
and steel within the colonies, and directed the governor to 
enforce this prohibition and to close all such establishments. 
For failing to do this, he was to forfeit ^500 and to be per- 

1 New Hampshire Provincial Papers ', v. 753. 

2 c. 18, § ii. : Statutes at Large, iii. 182. 
8 c ' 7i § viii. : Ibid., 269. 

4 c. 22, § iv. : Ibid., 610; North Carolina Records, i. 509, 799. 



NEGLIGENCE OF GOVERNORS. 69 

manently disqualified for holding any office of trust. 1 The act 
of 4 George III. provided for a new oath covering all duties 
imposed by previous acts of Parliament. 2 These various direc- 
tions were collected and systematized in a separate set of in- 
structions relating to trade, enumerating a formidable list of 
acts of Parliament, each of which assigned to the governor 
certain specific duties. 3 

It was only with great difficulty that the governor could be 
held to the faithful performance of these duties. Indeed, 
charges of negligence in regard to them were made very early. 
In 1696 Edward Randolph complained that the governors did 
not enforce the navigation laws. 4 Dudley's instructions of 
1702 referred to abuses in the plantation trade as largely due 
to remissness on the part of governors; 5 and there is evidence 
to the same effect in the severe penalties imposed by various 
statutes for neglect of these duties. Clearly, then, the gov- 
ernor was far from efficient in his execution of parliamentary 
enactments. 

Before leaving this subject, it is necessary to consider very 
briefly the British system of colonial administration, so far as 
it touches the governor. During the eighteenth century the 
management and supervision of colonial affairs were largely in 
the hands of the so-called Board of Trade, the origin of which 
may be traced to a commission issued by the crown in 1696, 
after a varied experience with other councils and committees 
charged with the care of the colonies. 6 By this commission 

1 c. 29 : Statutes at Large, vi. 490. 

2 c. 15, § xxxix. : Ibid., vii. 464. 

8 See, for example, those issued to Bernard of New Jersey, 1758, New 
Jersey Documents, ix. 77. 

4 Maryland Archives, iii. 484, v. 46; New Jersey Documents, ii. 116, 

i3if 358. 

5 See instructions, p. 116. The same complaint was made in regard to 
other acts of Parliament. One of the articles of Bernard's instructions 
(§ 24) recited the failure of governors to enforce fully the provisions of the 
act fixing the rates of foreign coins. 

6 See Neill, Virginia Carolorum, 102; Sainsbury, Calendar of State 
Papers, Colonial Series, America and West Indies, 1 574-1660, pp. 198, 335, 
483, 492, and 1 669-1 674, p. 407. 



70 GOVERNOR AS AGENT OF HOME GOVERNMENT. 

a. board of commissioners was organized "for promoting the 
Trade of this Kingdom and for inspecting and improving His 
[Majesties] Plantations in America and elsewhere." These 
commissioners were particularly directed to examine the usual 
instructions given to the governors, to consider and report 
desirable alterations, to take an annual account of the admin- 
istration of governors, to hear complaints of maladministration, 
and, finally, to recommend persons for appointment as gover- 
nors, councillors, or other colonial officers. 1 

Until 1752, governors were directed to correspond both with 
the Board of Trade and with one of the principal secretaries of 
state; 2 but in that year a new order was issued, by which the 
position of the Board of Trade was somewhat strengthened. 
Thenceforth governors and other provincial officers were to be 
appointed on the nomination of the Board of Trade, which was 
also to prepare draughts of commissions and instructions; and 
governors were directed in all ordinary matters to correspond 
with the Board of Trade alone, communicating with the secre- 
taries only on matters requiring the more immediate attention 
of the crown. 3 In 1766, however, this order was reversed, and 
the governors were directed as before to correspond with the 
secretaries of state as well as with the Board of Trade. Thus, 4 
during the main part of the period under consideration, the 
governor's communication with the central administration was 
carried on through these two agencies, and in ordinary times 
chiefly through the Board of Trade. It was on recommenda- 
tion of this body that he received his appointment, his instruc- 
tions were prepared by it, and he was subject in man^ ways to 
its direction. 

It seems clear that this system of colonial administration 
was inefficient. The most important criticism upon it is that 
of Thomas Pownall, who was at one time governor of Massa- 
chusetts, succeeding Shirley and preceding Francis Bernard. 

1 New York Documents, iv. 145. 

2 See, for example, instructions to Cornbury of New Jersey, 1702, § 102; 
to Dudley of Massachusetts, 1702, p. 115. 

8 New York Documents, vi. 757. 
4 Ibid.) vii. 848. 



THE BOARD OF TRADE. 7 1 

Pownall declared that the weakness of the system was largely 
due to unwise division of authority. For example, the Board 
of Trade which had the general supervision of the colonial 
governors had not the right of final appointment or dismissal. 
He thought that the administration for all the colonies should 
have been exclusively in the hands of a single department ; l 
and his opinion is supported by the evidence already given as 
to the failure of governors to maintain regular correspondence 
with the Board of Trade. 

1 Pownall, Administration of the Colonies, 13 seq. Cf. Egerton, British 
Colonial Policy, 1 16 seq. 



CHAPTER V. 

THE GOVERNOR'S COUNCIL. 

The governor was the head of the colonial executive; but 
in the exercise of his powers he was assisted, and to a certain 
extent checked, by an executive council, usually of twelve 
members. Except in two provinces, these councillors were 
appointed by the crown, usually on the governor's recommenda- 
tion. The original rule, as stated in the governor's instruc- 
tions, was that the governor should always keep before the 
Board of Trade a list of persons best qualified for appointment 
as councillors. 1 The number was originally six; but later a list 
of twelve eligible candidates was sometimes required. 2 This 
rule evidently was not always observed ; hence, on the recom- 
mendation of the Board of Trade, it was finally so modified 
that the governor was simply required, as each vacancy oc- 
curred, to send in the names of three persons, from which the 
crown might make its choice. 3 When the number of coun- 
cillors fell below seven, the governor was allowed to make 
provisional appointments, which were valid until acted upon 
by the crown, or until by other nominations the council had 
again seven members. 4 It was claimed in Virginia that the 

1 Instructions to Dongan of New York, 1686, § 8. 

2 Instructions to Burrington of North Carolina, 1730, § 6. 

3 The instructions to Bernard of New Jersey, 1758 (§ 7), required three 
from each of the two divisions of the province ; those to Dobbs of North 
Carolina, 1754 (§ 7), do not specify any number of names. 

4 In some of the instructions the number was nine instead of seven. See 
commission to Bernard of New Jersey, 1758, § 6, and his instructions, 
§ 8. Cf. commissions to Allen of New Hampshire, 1692, p. 58, and Corn- 
bury of New Jersey, 1702, p. 492; instructions to Allen, p. 64; to Cornbury, 
§ 10; to Dobbs of North Carolina, 1754, § 8; to Dunmore of Virginia, 1771, 
§8. 



APPOINTMENTS AND REMOVALS. 73 

governor kept the number of councillors as low as possible, in 
order that he might enjoy this right of appointment. 1 

The governor, in his nominations for the council, was 
directed to see that certain qualifications were complied with. 
For example, the councillors must be men of good life and 
"well affected to Our Government," of good estates, and not 
necessitous persons or much in debt; they must also be 
"inhabitants" of the province. 2 Clearly the intention was to 
secure, so far as possible, the substantial men of the colony, 
though undoubtedly many other elements had to be taken into 
consideration. Thus, in at least two colonies, it was not safe 
to ignore the principle of local representation within the 
province. The New Jersey proprietors, on their surrender 
of the two provinces of East Jersey and West Jersey, had 
expressed their wish that in the united province six councillors 
might be chosen from each side of the old line of division; 3 
and this principle was recognized in the first royal instruc- 
tions. 4 Still, it is evident that the rule was not strictly 
enforced, for in Belcher's time only two of the councillors 
represented the western division, an inequality which was 
made a ground of complaint against the governor. In 1758 
Governor Bernard was instructed, in case of vacancies, to send 
in the names of three persons in each of the two divisions. 5 
In New Hampshire there was no definite provision in regard 
to the matter; but in 171 7 complaint was made to Governor 
Shute that by his appointment of six councillors, all from 
Portsmouth, an undue representation had been given to the 
merchants and traders. 6 Similar considerations undoubtedly 
presented themselves in other provinces. 

1 Hartwell, Blair, and Chilton, Present State of Virginia, 23. 

2 Instructions to Bernard of New Jersey, 1758, §§ 7, 9. Cf. §§ 7, 9 of 
instructions to Dobbs of North Carolina, 1754, and to Dunmore of Virginia, 
1771. 

8 " Memorial of the Proprietors," New Jersey Documents, ii. 407. 

4 To Cornbury, 1702, § 9. 

6 New Jersey Document*, viii. (1) 18 seq. Cf. instructions to Bernard, 
1753, § 7- 

6 New Hampshire Provincial Papers, iii. 675 ; Belknap, History of New 
Hampshire, ii. 18 seq. 



74 THE GOVERNOR'S COUNCIL, 

It has generally been assumed, and with some degree of 
truth, that the governor had essentially his own way in the 
appointment of councillors; but such a statement would require 
some limitation. Undoubtedly he was not at first under any 
effective restraint; but later he seems not to have been always 
successful in getting his nominations accepted, — a circum- 
stance indicating the presence of counter-influences not always 
of a desirable kind. In 1756 Governor Sharpe of Maryland 
complained that his recommendations for the council had been 
very generally disregarded. 1 

The councillors thus appointed might be removed only by 
the crown, though the governor had the right to suspend them 
for certain causes. 2 A councillor absent for twelve months 
without the governor's consent, or for two years without leave 
from the crown, was to lose his position. 3 The governor was 
directed to send immediately to the Board of Trade the names 
of all councillors suspended by him, with a statement of the 
grounds of suspension; but this arrangement left him so nearly 
unrestrained that it was afterward found necessary to require 
that all suspensions should have the consent of a majority of 
the council, to which the governor was to communicate the 
reasons for his action. If, however, the reasons were of such 
a nature that they might not properly be communicated to the 
council, the governor was to transmit at once to the home gov- 
ernment a full statement of his charges against the suspended 
councillors. 4 

Under these provisions the governor had considerable lati- 

1 He writes with some bitterness that he has been ordered to put into the 
council a person whose merits " are to me all invisible," unless " an easy 
Disposition & his having lately contracted Marriage with a Niece of His 
Ldp's " may be considered merits {Maryland Archives, vi. 400-401). 
Governor Belcher of New Jersey was often forced to see his own recom- 
mendations ignored and other appointments made (see New Jersey Docu- 
ments, vii. 177, 595, 608-609). 

2 Commission to Bernard of New Jersey, 1758, §§4, 5. 
8 Instructions to Bernard of New Jersey, 1758, § n. 

4 See § 10 of instructions respectively to Bernard of New Jersey, 1758; 
to Dobbs of North Carolina, 1754; to Dunmore of Virginia, 1771. Cf. 
instructions to Allen of New Hampshire, 1692, p. 64. 



THE PENNSYLVANIA COUNCIL. 75 

tude in the exercise of his right of suspension; indeed, even 
in the final removal of councillors his influence often prevailed. 
There can therefore be little doubt that this power was liable 
to very serious abuse by governors who were disposed to take 
advantage of it to get rid of their opponents in the council, 
and to put into their places persons who might be relied upon 
to support the governor's interest. This danger led to a 
tendency on the part of the home government to check more 
closely the governor's power of suspension, with the result 
that in several cases suspended councillors were reinstated by 
special order of the crown. Thus in 1706 the Board of Trade 
ordered Lord Cornbury to reinstate Lewis Morris, a councillor 
whom the former had suspended; 1 and in 1719, on Governor 
Spotswood's proposal to suspend William Byrd for prolonged 
absence from the colony, an order in council was issued direct- 
ing in somewhat peremptory terms the councillor's retention 
or reinstatement. 2 It is true that this reversal of the gover- 
nor's action was not common; but the fact that it was possible 
and had actually taken place was of no little significance. 

There were two colonies in which the constitution of the 
council differed from the regular type just described. These 
colonies were Pennsylvania and Massachusetts. When Penn 
left his colony in 1701, he issued a commission to ten persons 
to constitute a Council of State, empowering the governor for 
the future to fill any vacancies that might arise and, if he saw 
fit, to add to the number of councillors. 3 This provision 
seemed to give the governor greater control of the constitution 
of the council than was the case in other colonies; but it is 
evident that his power was very much restricted either by 
subsequent instructions or simply by usage, for in actual prac- 
tice the council itself had an important part in the admission 
of new members. 4 The exact method of the removal of coun- 

1 New Jersey Documents, iii. 95, 124, 154. 

2 Calendar of Virginia State Papers, i. 195. For a similar case in 
North Carolina, see Colonial Records, vi. 558, 1015. 

8 Commission in Proud, History of Pennsylvania, i. 451. 
4 For example, in 1702 the governor proposed the name of John Finney 
as councillor ; whereupon the council ordered that he should forthwith be 



J 6 THE GOVERNOR'S COUNCIL. 

cillors is not quite clear; but it would seem that the power of 
dismissal lay in the hands of the governor and council, possibly 
in those of the governor alone. 1 Thus in Pennsylvania, as in 
the royal governments, there was a nominated council, in the 
appointment of which the governor had a predominant influence. 

In the Massachusetts council is found a radical departure 
from the principle of the royal government, in that the council 
was there not appointed, but elected. The explanation of this 
circumstance lies in the peculiar character of the second Massa- 
chusetts charter. In granting this instrument, the crown had 
determined not to restore the old independent system which 
had grown up under the first charter, but to put in its place 
the principle of direct control by the crown. The old repub- 
lican traditions, however, were too deeply rooted in the affec- 
tions of the people to be lightly put aside, and consequently 
concessions were necessary. Indeed, the charter of 1691 was 
distinctly a compromise, under which the governor was here, 
as elsewhere, to be appointed by the crown, though the old 
principle of popular control of the executive was to survive in 
the constitution of the council. 

The charter declared that there should be a council of twenty- 
eight members, more than double the usual number in the 
other colonies. Of these twenty-eight members, eighteen at 
least were to be from the old Massachusetts Bay jurisdiction, 
four from Plymouth, three from Maine, and one from the ter- 
ritory between the Sagadahoc and Nova Scotia. As each of 
these divisions must have at least the representation here 
assigned, only two members were left without designation. 
This council was to be chosen annually by the General Court; 
but the charter provided that the General Court should consist 
of the council and the House of Representatives, and further, 
that the governor should have the right of veto upon all acts 
and orders of the General Court. 2 

admitted: Pennsylvania Records, ii. 68. For similar cases, see Ibid., ii. 

117 (1703), iii- 232 (1724), 529 (1733), v. 1 (1745)- 

1 For example, in 1706 the governor was called upon to remove a member 
of the council {Ibid., ii. 279). 

2 Charter of 1691, in Poore, Charters and Constitutions, i. 942. 



THE MASSACHUSETTS COUNCIL. 77 

The first councillors were named by the crown ; consequently 
an election did not occur till 1692. On that occasion the 
House of Representatives claimed the right to elect councillors ; 
but the council also claimed the right to participate in the elec- 
tion, and finally carried the day. 1 The members of the council 
were regularly elected by joint ballot of the two Houses; 2 and 
though in this ballot the lower house had of course a decided 
numerical advantage, yet as a rule the influence of the council 
was sufficient to prevent sweeping changes. 

That the governor's right of veto was no mere formality 
is shown by the circumstance that in 1693 Governor Phips 
negatived a candidate who had opposed his appointment as gov- 
ernor. 3 Again, in 1703 Governor Dudley placed his veto upon 
five councillors, two of whom were the next year again elected 
by the General Court but again disallowed by the governor. 4 
The most striking case is that of Governor Belcher, who in 
1 74 1, at the time of the famous land-bank craze, negatived 
thirteen councillors; whereupon the House retaliated by refus- 
ing to fill the vacancies, thereby establishing a precedent 
which was followed by succeeding Houses. 5 Nevertheless 
conflicts of this sort were less common than might have been 
expected, inasmuch as both the House and the governor seem 
usually to have avoided radical action. In 1729, in the heat of 
the struggle over the salary question, only four of the twenty- 
eight councillors were changed, notwithstanding the fact that 
the council had opposed the extreme demands of the House. 6 

The Massachusetts council, then, departed from the ordinary 
type in two important particulars. In the first place, it had 
a much larger number of members, — always an important con- 
sideration in determining the character of such a body; and, 
secondly, it was constituted on an entirely different principle, 
in that it received its members not by appointment but by 

1 Hutchinson, History of Massachusetts, ii. 16. 

2 See, for example, Journal of the House, 1723, pp. 2-3. 
8 Hutchinson, History of Massachusetts, ii. 70. 

4 Ibid., 136-137; SewalVs Diary, ii. 78, 103. 

5 Hutchinson, History of Massachusetts, iii. 152. 

6 Ibid., ii. 323. 



78 THE GOVERNOR'S COUNCIL. 

election, an election checked, however, by the governor's 
veto. 

Before this subject is left, it should be stated that besides 
the regular members of the council there were other so-called 
extraordinary members. Thus, by order of the crown, surveyor- 
generals of customs were ex officio members of the councils in 
their respective districts; 1 and by a later provision the same 
privilege was given to the royal superintendent of Indian 
affairs. 2 As might be expected, these extraordinary councillors 
seem to have been regarded with some jealousy by the regular 
members. 3 Sometimes also the lieutenant-governor was a 
member of the council. 4 In Massachusetts, Stoughton, the 
first lieutenant-governor, acted in the first place as a councillor 
ex officio, but in 1693 he was elected as one of the regular 
twenty-eight councillors. 5 Thereafter, until 1732, the lieu- 
tenant-governors sat in council, but did not vote unless they 
had been regularly elected. In that year Governor Belcher, 
influenced, it is said, by personal dislike of Lieutenant-Gov- 
ernor Phips, forbade the latter to sit unless elected. In regard 
to this action, Hutchinson insists that in the intention of those 
who drew up the charter the lieutenant-governor was to have 
a seat in the council, and cites in support of his position a 
minute of the Board of Trade to that effect, made just before 
the charter passed the seals. 6 

The councillors were not, as a rule, salaried officers, though 
in Virginia they received an allowance out of the permanent 
fund for the support of the government. 7 In general, how- 

1 New Jersey Docu?nents,v. 348. 

2 Stokes, Constitution of the British Colonies, 237. Cf. Ibid., 123. 

3 In Virginia the councillors at first refused to allow Surveyor-General 
Dinwiddie to act with them, — whether because they disliked the inter- 
ference of outsiders in their local affairs, or, as Chalmers says^ on account 
of aristocratic prejudices, it is difficult to say. See Chalmers, Revolt, ii. 199. 

4 Maryland Archives, viii. 365, 366; New Hampshire Provincial 
Papers, iii. 661, 674, 7 $6. 

5 Hutchinson, History of Massachusetts, ii. 70. 

6 Ibid., iii. 174. 

7 See instructions to Dunmore, 1771, § 88. In Maryland they were for 
a time similarly paid out of the proprietary fund ; but this fund was finally 



MEETINGS OF THE COUNCIL. 79 

ever, like the members of the lower house, they had to con- 
tent themselves with per diem allowances during the sessions 
of the assembly. 1 

As an executive board, the council was of course subject to 
the governor's call, 2 though in some cases it met at stated 
periods. Thus in the New Jersey records are found refer- 
ences to regular quarterly meetings; and in Pennsylvania there 
was a rule providing for weekly meetings. 3 For the conduct 
of executive business the commission required a quorum of 
three; 4 but by the instructions the governor was directed not 
to act with less than five, except in emergencies in which so 
large a number could not be had. 5 In the larger Massachu- 
setts council of twenty-eight members, the quorum was fixed 
at seven. 6 In executive meetings the governor presided and 
proposed matters for consideration; but he was directed to 
allow the council freedom of debate and vote. 7 

engrossed by the governors. They were then provided for by temporary 
grants of the assembly, until the lower house at length refused to continue 
the grants (Sharpe's Correspondence, Maryland Archives, vi. 46-48 ; Votes 
and Proceedings of the Lower House, Nov. 16, 1753, May 1 and 4, 1756). 
In Pennsylvania, where the council was only an executive board, council- 
lors had no pecuniary compensation (speech of the governor, 1757, Votes 
of Pennsylvania, iv. 750-751). 

1 In North Carolina in 1761 the allowance was 7s. 6d. In 1757 the 
Board of Trade recommended an allowance of ^50 per annum, to be paid 
out of the quit-rents of the province. See North Carolina Records, v. 7S7- 
788. vi. 620. Cf. Massachusetts Province Laws, i. 100, ii. 410, 591, 1074; 
Acts a?id Laws of New Hampshire (1771), ch. 47; Allinson, Acts of 
Assembly, ch. 631, § v. 

2 Stokes, Constitution of the British Colonies, 124; Hartwell, Blair, and 
Chilton, Prese?it State of Virginia, 34. 

8 New Jersey Documents, viii. (1) 103; Pennsylva?iia Records, ii. 597, 
iii. 56. 

4 See commission to Bernard of New Jersey, 1758, § 5; to Dobbs of 
North Carolina, 1760, p. 526. 

6 See § 6 of instructions respectively to Bernard, 1758; to Dobbs, 1754; 
to Dunmore of Virginia, 1771. 

6 Charter of 1691, in Poore, Charters and Constitutions, i. 942. 

7 Stokes, Constitution of the British Colonies, 124; Hartwell, Blair, and 
Chilton, Present State of Virginia, 21, 32. See also instructions to Bernard 
of New Jersey, 1758, § 5 ; to Allen of New Hampshire, 1692, p. 63; to 



80 THE GOVERNORS COUNCIL. 

Having considered the organization of the council, let us 
now turn our attention to its functions. These were of three 
general classes. In the first place, the council with the gov- 
ernor had some judicial functions, and constituted a court for 
the trial of certain kinds of offences. In the second place, it 
was the upper house of the provincial legislature. Finally, it 
was an executive body to assist, to advise, and in a measure to 
control the governor in the exercise of his executive functions. 
The judicial functions of the council will be considered inci- 
dentally in connection with the judicial powers of the gover- 
nor, and its legislative work in connection with the relation 
of the governor to the assembly. For the present, then, the 
council may be considered as an executive, advisory body. 

An accurate definition of its powers and duties as an ex- 
ecutive board is not easy. In the absence of definite state- 
ments, many matters were determined by mere usage; and 
even when definite statements did exist, they were often modi- 
fied by the same unwritten law. The personal element must 
therefore be taken into account, in order to get an adequate 
conception of the relative powers of governor and council in 
any given province and at any given time. 

One function of the council is however very clear : it was at 
least an advisory body. 1 This phase of the councillor's posi- 
tion was expressed in his oath of office, by which he was 
bound "at all times freely" to give his advice to the governor 

Cornbury of New Jersey, 1702, § 7; to Dudley of Massachusetts, 1702, p. 
102; to Dobbs of North Carolina, 1754, § 5; to Dunmore of Virginia, 

I77i, § 5- 

1 In 1666 Governor Calvert of Maryland was required to "advise as 
there shall bee occasion with those who are or shall be of our Councill 
there . . . upon all emergent occasions touching . . . the goode Gov- 
ernm 1 of our said Province and the people there" (Maryland Archives, 
iii. 545). The Massachusetts charter of 1691 provided for a council to " be 
advising and assisting to the Governour " (Poore, Charters and Constitu- 
tions, i. 948). Penn commissioned the council of his colony "to consult 
and assist with the best of their advice and counsel, me, or my Lieutenant, 
or Deputy Governor, for the time being, in all public affairs and matters 
relating to the said government, and to the peace, safety and well-being of 
the people thereof" (Proud, History of Pennsylvania, i. 451). 



COXSEXT OF THE COUXCIL REQUIRED. 8 1 

"for the good management of the publick affairs of this gov- 
ernment." 1 The councillors had also to restrain as well as to 
assist the governor in the exercise of his powers. In the com- 
mission and instructions to the governor was a long list of 
matters in which his power was limited by the proviso that he 
was to act only with the advice and consent of the council. 
Thus, the commission and instructions to Governor Bernard 
of New Jersey in 1758 contained a number of such restric- 
tions as the following: the advice and consent of the council 
were required in calling assemblies; 2 in erecting courts and 
regulating their jurisdiction; 3 in issuing warrants for the 
expenditure of public money; 4 in declaring martial law; 5 and, 
finally, in taking any action not definitely provided for in the 
commission. 6 

In appointments made by the governor the advice and con- 
sent of the council were not at first distinctly required. 7 The 
respective rights of the governor and council within this field 
became in consequence the subject of frequent controversy. 
In 1709, however, in the instructions to Governor Hunter of 
New York, occurred the provision that commissions to judges 
and justices of the peace should be issued with the advice and 
consent of the council; 8 and this restriction was repeated in 
subsequent instructions. The rule was still more forcibly laid 
down afterwards, when the governor was directed not to 
appoint judges or justices without the consent of at least three 
of the council. The Board of Trade explained the necessit}/ 1 
for this new statement on the ground that the old provision, 
though clearly requiring the advice and consent of the council, 
had not been strictly adhered to by the governors. 9 In Massa- 

1 Massachusetts Province Laws, i. 78. 

2 See instructions, § 12, and commission, § 7. 

3 Commission, § 15. 

4 Instructions, § 19. 5 Ibid., § 72. 

6 Ibid., § 83. 

7 See instructions to Allen of New Hampshire, 1692, and to Cornbury of 
New Jersey, 1702. 

8 §43- 

9 Instructions to Bernard of New Jersey, 1758, § 41 ; to Dunmore of 
Virginia, 1771, § 45. Note especially the instructions to Dobbs of North 

6 



82 THE GOVERNOR'S COUNCIL. 

chusetts the consent of the council to appointments had been 
definitely required by the charter of 1691. 1 Indeed, the council 
had even gone so far as to claim the right of nominating 
officers, a power which was only with some difficulty resumed 
by the governor. 2 

The advice of the council was of course asked and given 
on a great variety of other questions, though the extent to 
which the practice was carried naturally depended upon the 
personal characteristics of the governor on the one side, and 
of the councillors on the other. Some governors excluded the 
council from the conduct of public affairs as far as possible, 
while others were inclined to throw responsibility upon it. 3 
The temptation to shift responsibility was particularly strong 
in questions of legislation. Indeed, governors often asked ad- 
vice as to whether they might properly give their consent to 
particular bills, even though before coming to the governor 
at all a bill must have been previously passed by the council 
sitting as an upper house. Governor Shute of Massachusetts, 
for example, asked the opinion of his council whether he 
might, consistently with his instructions, pass an act laying 
duties on English goods. The council gave its opinion that 
he might not. 4 Again, Governor Sharpe of Maryland asked 
advice on the question of approving a supply bill, which among 
other provisions imposed a tax on the proprietary estates. 5 

There is at least one instance, however, in which the council 
gave advice with some reluctance. The Massachusetts coun- 
cillors, having passed a bill, were then called upon by the 
governor to decide whether he might sign it consistently with 
his instructions. They insisted, however, that having already 
declared their concurrence as an upper house they could 

Carolina, 1754, § 62, and the explanatory note by the Board of Trade, 
North Carolina Records, v. 11 04. 

1 Poore, Charters and Constitutions, i. 942. 

2 Chalmers, Revolt, i. 284. 

8 See remarks on Stoughton and Dummer in Hutchinson, History of 
Massachusetts, ii. 79. 

4 Ibid., 205. 

6 He writes : " I presume their Advice will be in some Sort my Justifi- 
cation" {Maryland Archives, vi. 428). 



ADVICE IN LEGISLATION. 83 

not give any further advice. Nevertheless, they continued to 
assert that the bill was for the public welfare; and the gover- 
nor seems to have accepted this declaration as a convenient 
excuse, for he signed the bill, urging in defence of his action 
the advice of his council. 1 

In Pennsylvania the question of asking advice in legislation 
became an issue of great importance. It will be remembered 
that in this colony the council was a purely executive body, 
without any direct participation in legislation, although by 
the terms of their commission the councillors were to advise 
the governor in all public matters relating to the government 
and to the peace and welfare of the people. 2 This provision 
would seem to include the giving of advice on legislation ; but 
the assembly was inclined to resent any interference whatever 
in this field. In 1709, Governor Gookin complained that the 
assembly would not allow him to communicate the supply bill 
to the council for its advice; and he therefore thought it neces- 
sary to enter into an argument in defence of his position. 3 

During the governorship of his successor the issue was quite 
clearly defined. Governor Keith had been instructed that, in 
order to impose a necessary check upon the otherwise un- 
controlled action of the governor and assembly, he was to 
take no action in legislative matters without the advice and 
consent of the council. 4 The council, it must be remembered, 
was looked upon as the bulwark of proprietary interests, a 
view which only increased the hostility of the assembly. 
Keith now adopted a distinctly popular policy, by allying 
himself with the assembly as against the proprietary interest 
and its representative, the council. The result was that the 
proprietary instructions were so often ignored that the widow 
Penn at length found it necessary to intervene. Keith was 
censured for departing from his instructions, and new instruc- 
tions were issued that completely tied his hands in matters of 

1 Hutchinson, History of Massachusetts, ii. 297 ; Massachusetts Province 
Laws, ii. 486. 

2 Commission in Proud, History of Pennsylvania, i. 451. 

3 Pennsylva?iia Records, ii. 492. 

4 Instruction of 1724, in Proud, History of Pennsylvania, ii. 178 sea. 



84 THE GOVERNORS COUNCIL. 

legislation. He was directed for the future to advise with the 
council upon every meeting or adjournment of the assembly; 
to make no speech and send no message not approved by the 
council, if practicable ; to return no bills without advice, and 
to approve none without the consent of a majority of the 
council. 1 Keith argued that by the existing charter the council 
was no part of the legislature and had no right to restrain the 
governor's action in that department. He even went so far as 
to maintain that the council was not legally anything more 
than a council of state, "to advise, and to be present, as 
solemn witnesses to the Governor's actions." 2 He soon paid 
the penalty of his insubordination, however, with the loss of 
his office. 3 

It is clear that the instructions of the widow Penn were not 
always strictly observed. Nevertheless, the council was so 
frequently asked to give advice that it seems often to have 
assumed almost the character of an upper* house. For ex- 
ample, it discussed and amended bills for various purposes, 4 
although sometimes the governor passed a bill in the face of 
opposition from the council. Thus, in 1759, the assembly 
passed a bill for the issue of paper money, whereupon the 
council made a formal protest against the governor's action as 
inconsistent with his instructions. The protest, however, was 
ignored and the bill passed. 5 

The questions referred to the council were not confined to 
matters of legislation. There is an interesting case in Massa- 
chusetts in which the councillors were called upon to give 
their opinion as to the interpretation of the clauses in the 
charter which defined the governor's military power. They 
were reluctant to give advice under such circumstances, and 
one of them declared that such questions of interpretation 
belonged to the judges, not to the council. They finally 
returned a noncommittal answer. 6 

* 

1 Proud, History of Pennsylvania, ii. 179, note. 

2 Votes of Assembly, quoted Ibid., 1 80-1 81 seq., notes. 

3 Ibid., 183. 

4 See, for example, Pennsylvania Records, vii. 444. 

5 Ibid., viii. 2>S7 se 2* 6 SewalVs Diary, iii. 313. 



CHARGED WITH DEPENDENCE ON THE GOVERNOR. 85 

It has been seen that the reference to the council of such 
a question as the propriety of signing particular bills seemed 
often to offer a convenient means of shifting responsibility. 
The home government saw this clanger, and laid down em- 
phatically the principle of the governor's personal responsi- 
bility. In the year 1758, for example, Governor Fauquier of 
Virginia approved the law reducing the salaries of ministers; 
but the act was disallowed on the ground that it had been 
passed contrary to the governor's instructions, and Fauquier 
was reprimanded. In defence of his action, he presented the 
excuse that he had passed the law by the advice of his council 
and contrary to his own better judgment; but the Board of 
Trade declined to admit this defence, insisting that the advice 
of the council could not free the governor from personal 
accountability. 1 

More important than any formal statement of rights and 
duties, is the question as to the real influence of the council 
in the government of the province, — as to the extent to which 
it actually controlled the governor's action. This is clearly 
a difficult question, depending as it does largely upon those 
personal elements that refuse to submit to convenient generali- 
zation or exact definition. It has been very generally assumed, 
and not unnaturally, that a body constituted like the provin- 
cial council was necessarily subservient to the governor, exer- 
cising practically little or no check upon his action; and it 
would not be difficult to find contemporary opinions tending 
to confirm this view. Governor Hutchinson, in his "History 
of Massachusetts," 2 comparing the elective council of his 
province with the nominated council of the other royal gov- 
ernments, speaks of the latter as so closely dependent upon 
the governor that it could hardly be considered as a distinct 
branch. The same ground is taken by Dummer, in his "De- 
fence of the New-England Charters." 3 Moreover, governors 
were sometimes charged with keeping the council subservient 
by means of a judicious system of patronage. 4 

1 Chalmers, Revolt, ii. 356-357. 

2 II. 16. ■ Pp. 40-41. 

4 "A Short Discourse on the Present State of the Colonies in America" 



86 THE GOVERNOR'S COUNCIL. 

To present only this side of the case, however, would be to 
give a false impression. The governor's control of the consti- 
tution of the council was by no means absolute, a fact which 
must be borne in mind in any fair consideration of the sweep- 
ing charges of subserviency brought against the provincial 
councils. If there are many instances of subservient councils, 
there are also cases of direct conflict between governor and 
council. Take, for example, the case of the Virginia council, 
which by one author was represented as completely under the 
governor's thumb. 1 By other writers the situation was viewed 
in a very different light. Chalmers says of this council dur- 
ing the reign of Queen Anne: "From the constitution of 
this province, twelve counsellors enjoyed almost every power," 
even attempting to control governors and frequently succeed- 
ing in securing their recall. According to the same authority, 
a combination of six councillors secured the recall of Governor 
Nicholson. 2 Governor Spotswood, who succeeded to the gov- 
ernment a few years later, made frequent complaints in his 
letters of the factious and unreasonable claims of the council, 
saying that it was under the control of a family who had suc- 
ceeded so well as to remove two governors while they them- 
selves had kept their seats, and whom he now suspected of 
intriguing against himself. 3 Here, then, clearly enough was 
a strong aristocratic body very different from the subservient 
creatures of the governor whom we might have expected to 
find. In 171 1 Governor Hunter of New Jersey complained of 
the council's obstinate resistance to public measures upon 
which governor and representatives were agreed. 4 In 1749 the 
governor and assembly of New Jersey had one agent in London, 

(1726), by M. Bladen, in North Carolina Records, ii. 626 seq., especially 
631 ; Hartwell, Blair, and Chilton, Present State of Virginia, 24, 32-33. 

1 Hartwell, Blair, and Chilton, Present State of Virginia, 32. 

2 Chalmers, Revolt, i. 317-318. 

8 Letters of Governor Spotswood (Virginia Historical Society," ColleC' 
tions, ii.), passim, especially 285, 311 seq. 

4 New fersey Documents, iv. 51-62. Governor Hunter was accused at 
this time of having a sort of kitchen cabinet (/did., 119. Cf. the case of 
Governor Belcher, Ibid., vii. 183, 251). 



CONSERVATISM OF THE COUNCIL. 87 

and the council another. 1 The case of Governor Keith and 
the Pennsylvania council has already been referred to. These 
instances are enough to show that the councillors must not be 
regarded necessarily as mere figureheads, since they are seen 
to have been often men who could and did act even in opposi- 
tion to the governor's favorite measures. Indeed, with the 
increasing number of restrictions upon the governor's power of 
suspension and appointment, it became more and more difficult 
to get rid of opposition within the council, or even to prevent 
opponents from becoming councillors. 

With these limitations always in mind, it must be said, 
however, that as a rule the council could be relied upon to 
support the governor in his defence of his own prerogative and 
of the interests of the crown. This fact was clearly shown by 
the action of the council in legislation, in which it generally 
supported the governor against the lower house. For example, 
bills that were likely to be opposed by the governor were 
usually stopped in the council, a practice of which a good 
illustration is to be found in Maryland politics during the 
years 1753-1759- This was a stormy period of conflict between 
the governor and the assembly over supply bills, and yet dur- 
ing the six years there is no record of any veto by the gov- 
ernor : all bills presented to him were approved, and this fact 
clearly indicates that obnoxious legislation was blocked by 
the upper house. 2 Indeed, the council was sometimes even 
more conservative than the governor. Thus in South Carolina, 
on one occasion, the councillors, at the expense of their popu- 
larity, opposed the bills for the issue of paper money, although 
these measures had the support of the governor as well as of 
the assembly. 3 In Pennsylvania Governor Keith adopted the 
policy of winning popular support by an alliance with the 
assembly; and it was the resistance of the council to this 
design that brought on the discussion as to the powers of the 
council. 4 A later governor approved a bill for the issue of 

1 New Jersey Documents, vii. 302. 

2 Votes and Proceedings of the Lower House, Nov. 17, 1753-April 17, 1759. 

3 South Carolina Historical Society, Collections, i. 302. 

4 Proud, History of Pennsylvania, ch. xxv. 



88 THE GOVERNOR'S COUNCIL. 

paper money, in the face of a protest by the council against 
the bill on the ground that it was dangerous in its tendencies 
and inconsistent with the governor's instructions. 1 

The efforts made in Pennsylvania to get rid altogether of 
the intervention of the council have been already noticed. In 
Maryland, too, which was very probably under the influence of 
Pennsylvania ideas, the doctrine prevailed that "the Upper 
House is no Part of our Constitution." 2 A more practical 
expression of this jealousy of the council is seen in the as- 
sembly's policy of denying the council any right to initiate or 
to amend money bills. 3 Furthermore, the value of the council 
as a barrier against radical legislation was also much impaired 
by its very constitution: appointed as it was by the crown, it 
had little of that popular local support which alone could give 
it any great weight or influence. The royalist writer, Anthony 
Stokes, thought that if this difficulty had been met, if the 
council had been made a local, hereditary aristocracy with 
interests bound up with those of the crown, the Revolution 
might have been prevented. 4 

It is interesting to note that the Massachusetts elective 
council showed very nearly the same constitutional tendencies 
as the nominated councils of the other colonies. Though 
chosen by a vote in which the lower house predominated, it 
was distinctly conservative, partly perhaps from the fear of 
incurring a veto from the governor on its next election, partly 
owing to the personal influence of the governor exercised in 
other ways, and partly, without doubt, because of the conserva- 
tive influence of executive responsibility. A certain phase of 
popular feeling on this point is illustrated by an interesting 
anonymous pamphlet of the year 1708, which charged the coun- 
cillors, in language more forcible than refined, with subser- 

1 Pennsylvania Records, viii. 358. 

2 Maryla?id Archives, ix. 120. Note also a message of the House: 
" What are the Rights and Privileges of those Gentlemen, that are said to 
constitute another Branch, we know nothing about ; as it is a Branch unde- 
vised in our Charter, and unknown in it's Original " {Votes and Proceedings 
of the Lower House, Dec. 1, 1757). 

8 See below, pp. 122 seq. 

4 Constitution of the British Colonies, 137-138. 



THE MASSACHUSETTS COUNCIL. 89 

viency to the governor, censuring their timidity in strong 
terms; and furthermore contrasted unfavorably the elective 
council of Massachusetts with the nominated councils of the 
other colonies. 1 There is an entry in the diary of Samuel 
Sewall which gives a similar impression. 2 That this view was 
not always the correct one, however, is shown by Dudley's 
statement that there were "commonwealthsmen" even in the 
council, and by the fact that Lord Bellomont had serious dif- 
ferences with his council. 3 Nevertheless, the governor's veto 
seems on the whole to have been effective in keeping the 
opposition out of the council ; for in the heat of the controversy 
over the salary question, the council took the governor's side, 
and in 1719, in a long struggle between the council and the 
House over the impost bill, laying a tax on British goods, the 
council urged as its ground of objection that the bill was con- 
trary to the governor's instructions. 4 Hutchinson said of the 
council that it was too dependent on both governor and people, 
beins: at different times under the influence of the one or the 
other, adding that " the most likely way to secure a seat for 
many years" was "to be of no importance." 5 

In addition to other causes which have already been sug- 
gested, the conservatism of the council was due very largely to 
the presence of several men of official position. For example, 
in 1765 there were in the council the lieutenant-governor, the 
secretary of the province, judges of the Superior Court, and 
the attorney-general; and Hutchinson says that, with very few 
exceptions, the judges of the Superior Court had been elected 
to the council. Now these were all appointees either of the 
crown or of the governor, and hence as a rule — to use a con- 
temporary phrase — "government men." Hutchinson himself 
was for some years both councillor and lieutenant-governor, 
and seems to have been a sort of leader in the business of the 

1 " Deplorable State of New England," in Massachusetts Historical 
Society, Collections, 5th Series, vi. 113. 

2 For example, iii. 47. 

3 Chalmers, Revolt, i. 315. 

4 Council records, Massachusetts Province Laws, ii. 1 58-161. 

5 History of Massachusetts, ii. 15-17. 



90 THE GOVERNOR'S COUNCIL. 

council. In 1766, however, a radical change was made. The 
House then assumed an aggressive attitude, striking off from 
the list of councillors the lieutenant-governor and the most 
prominent of the official members, with the result that the 
relation of the council to the House and the governor respec- 
tively was entirely changed. The leadership of the council 
now passed from the hands of Hutchinson into those of Bow- 
doin, a popular leader, under whose management the council 
was brought into sympathy with the lower house. 1 It was 
this altered disposition of the council, no doubt, which caused 
a provision to be inserted in the Massachusetts Government 
Act, to the effect that the councillors should hereafter be 
appointed, as in the other colonies, by the crown upon the 
governor's recommendation. 

To sum up what has been noted as to the position of the 
council in the provincial constitution, it may be said that, 
although it is a mistake to suppose that the council was 
always or necessarily under the control of the governor, yet, as 
might have been expected from its constitution, it was usually 
on the governor's side in his contests with the assembly, exer- 
cising upon the whole a conservative influence. Furthermore, 
it is evident that this conservative tendency was found in the 
elective council of Massachusetts as well as in the nominated 
councils of the other colonies. In the words of Hutchinson, 
"neither in Massachusetts, nor in the royal governments, do 
we meet with that glorious independence, which makes the 
House of Lords the bulwark of the British constitution, and 
which has sometimes saved the liberties of the people from 
threatened incroachment, and at other times put a stop to 
advances making upon the royal prerogative." 2 

1 History of Massachusetts, iii. 148-150, 156. 

2 Ibid., ii. 17. 



CHAPTER VI. 

THE GOVERNOR'S EXECUTIVE POWERS. 

In the study of the powers and duties of the provincial gov- 
ernor, the first inquiry must be as to the documents in which 
these powers and duties are stated, the instruments through 
which the governor's authority was conferred and defined. 
There are two classes of instruments which have more nearly 
than the others that quality of permanence which is associated 
with a rigid constitution or a fundamental law. The first 
class may be represented by a single instance. When New 
Netherland passed from the Dutch to the English in 1664, the 
two parties agreed upon so-called "Articles of Capitulation," 
an instrument containing some important constitutional pro- 
visions. For example, it declared "That the town of Man- 
hatans shall choose Deputies, and those Deputies shall have 
free voices in all public affairs, as much as any other Depu- 
ties " ; another clause provided for the election of certain 
inferior civil officers and magistrates ; and there were also pro- 
visions regarding the rights of individuals. On the whole, 
however, there seems to have been little here to determine the 
framework of the provincial constitution. 1 

The second class of instruments, the charters, are much 
more important; yet even these, with the exception of the 
Massachusetts Province Charter of 1691, are of comparatively 
little value for the present purpose. In the first place, the 
royal governments, as a rule, had no charters ; the only one of 
any political significance was the so-called Province Charter 
of Massachusetts in 1691. In the two proprietary govern- 
ments which survived the general wreck, Maryland and Penn- 

1 New York Documents, ii. 250-253. 



92 THE GOVERNOR'S EXECUTIVE POWERS. 

sylvania, there were, it is true, the charters to the original 
proprietors; but the Massachusetts charter is the only one 
among either royal or proprietary governments which assumes 
to mark out in any systematic way the form of the provincial 
constitution, and to define with any degree of accuracy the 
relative powers of governor and assembly. Nevertheless, the 
charters did contain certain broad limitations, imposed in 
the one case by the crown upon the proprietors, and in the 
other by the crown upon itself. It must be said, moreover, in 
general terms, that in the proprietary governments the pro- 
prietors delegated to their governors the powers granted to 
themselves by their charters. All these cases, however, may 
fairly be regarded as exceptional, as variations from the strict 
type of the provincial government. 

The main clue to a correct understanding of the powers of 
the provincial governor is to be found in the vice-regal char- 
acter of his office. He was the agent, the representative of 
the crown. He succeeded, with certain necessary limitations 
imposed by his subordinate position, to the traditions of the 
royal prerogative as defined by long-standing usage and modi- 
fied by the development of parliamentary control. 1 Not only 
did this vice-regal conception determine the provisions of the 
commission ; it also fixed the interpretation of these provisions, 
or supplied a rule of action in matters concerning which the 
commission itself was silent. Naturally the question was 
constantly arising as to whether a particular power was or was 
not an essential part of the royal prerogative. Governors 
claimed, for example, that the interference of the assembly in 
military affairs and in appointments was an invasion of the 
prerogative; while the assembly, on its part, repeatedly based 
its privileges on the usages of the House of Commons. An 
interesting case in point arose from the practice of presenting 
the speaker to the governor for the latter' s approval. Since 
assent was always given as a matter of course, in England this 
custom had become a mere formality; and such was usually 
the case in the colonies. In a few cases, however, the gover- 

1 Pownall, Administration of the Colonies, 55 ; Chalmers, Political 
Annals, 683. 






HIS VICE-REGAL CHARACTER. 93 

nor undertook to make his prerogative a reality by rejecting 
the choice of the House. 1 

The terms of the commission echoed the old phrases of the 
royal prerogative; and often old powers of the crown which 
had ceased to have practical meaning at home were revived in 
it. Thus, in accordance with the old constitutional tradition 
which gave the king as the fountain of justice the right to 
erect courts of justice, the royal commission gave the governor 
as the king's representative this independent right of estab- 
lishing courts. 

With this fundamental principle in mind, the main features 
of the commission may be easily summed up. The king was 
the fountain of honor and privilege, and had thus the right 
to create offices and to fill them : therefore the provincial gov- 
ernor had the right to appoint all officers. The king was 
commander-in-chief of the army and navy: the governor was 
captain-general of the provincial military forces, as well as 
vice-admiral. The king, by virtue of his prerogative, might 
prorogue and dissolve Parliaments, although this power was 
limited by the triennial and septennial acts: the governor's 
commission, however, conferred it without limitation. The 
king had the right of legislation in conjunction with the 
two houses of Parliament : the governor was empowered to 
make laws with the consent of the council and assembly. The 
similarity is even more striking in minor points. The gover- 
nor, like the king, had in theory the right to grant charters 
of incorporation to cities and towns, and to establish ports, 
markets, and fairs; he had the right of pardon, except for 
treason and felony; and in ecclesiastical matters he had cer- 
tain rights of appointment to benefices. The character of the 
governor's office as drawn in the commission is thus clearly 
vice-regal. 

Besides the commission, a set of instructions was given to 
each governor on his appointment, and these were supplemented 
from time to time by so-called "additional instructions." The 
two documents taken together formed what may be roughly 
called the constitution of the province; they were drafted by 

1 See below, pp. 149 seq. 



94 THE GOVERNOR'S EXECUTIVE POWERS. 

the Board of Trade, receiving their final sanction through 
orders in council. 1 As to the distinctive characters of these 
two documents respectively, it may be said, in the first place, 
that the commission was an essentially public document, while 
the instructions were not. The commission was published 
at the accession of the governor, and was generally inscribed 
on the council books. 2 The instructions, on the other hand, 
were not regularly published, though it would appear that in 
Virginia it was at first customary to publish them, and that 
the discontinuance of the old usage was considered a griev- 
ance. 3 The governor was, however, directed to communicate 
to the council those clauses which had to do with matters in 
which its consent was necessary, together with such other 
articles as he might think fit for the information of the council 
and assembly. 4 The instructions thus given out were usually 
articles bearing on controverted points or limiting the gover- 
nor's assent to certain kinds of legislation. 

The commission contained the grant of power, while the 
instructions told how that power should be used and often 
limited its scope. For example, the commission empowered 
the governor to act with a quorum of three councillors : the 
instructions required a quorum of five, except in emergencies. 
The commission authorized him to appoint judicial officers : 
the instructions made necessary the advice and consent of the 
council for the making of such appointments. The commission 
authorized him to erect courts : the instructions usually for- 
bade the erection of new courts without special warrant from 
the crown. Finally, the commission empowered him to make 
laws in conjunction with the council and assembly : the in- 
structions forbade him to assent to certain classes of laws. 

An interesting question arises here as to the exact legal 
effect of action taken by the governor within the lines of his 
commission but in violation of his instructions. A case in 
point occurred in 1762. Governor Hardy of New Jersey was 

1 See e. g. New York Documents, vi. 791, 793. 

2 Stokes, Constitution of the British Colonies, 177. 

8 Hartwell, Blair, and Chilton, Present State of Virginia, 21. 
4 See instructions to Bernard, § 4. 



THE COMMISSION AND INSTRUCTIONS. 95 

authorized by his commission in general terms to appoint 
judges and other officers for the administration of justice. His 
instructions, however, expressly directed that the duration of 
such appointments should not be during good behavior but 
subject to recall at pleasure. In spite of these directions, 
Hardy, on his arrival in the province, appointed three judges 
of the Supreme Court, with commissions authorizing them to 
serve during good behavior; whereupon the validity of these 
commissions was questioned and the matter was referred to 
Attorney-General Yorke for his opinion. That officer held 
that the judges' commissions were illegal and invalid, on the 
ground that, although the power conferred by the governor's 
commission was general, yet since the instructions, which 
restricted his authority, were referred to in the commission, 
they must be regarded as incorporated into the latter document 
and hence as limiting the power conferred by it. 1 

It has been said that the commission and instructions may 
together be regarded as the constitution of the province. 
Thomas Pownall, one of the ablest students of colonial admin- 
istration, and himself at one time governor of Massachusetts, 
claimed for the royal commission something of that fixity and 
permanence which mark the so-called rigid constitutions of our 
own time. "This the King's commission," he writes, "is 
barely a commission during pleasure, to the person therein 
named as governor, yet it provides for a succession without 
vacancy, or interregnum, and is not revoked but by a like com- 
mission, with like powers: It becomes the known, established 
constitution of that province which hath been established on 
it, and whose laws, courts, and whole frame of legislature and 
judicature, are founded on it : It is the charter of that province : 
It is the indefeasible and unalterable right of those people 
. . . and therefore not to be altered; but by such means as 
any reform or new establishment may take place in Great 
Britain : It cannot, in its essential parts, be altered or destroyed 

1 New Jersey Documents, ix. 349 seq., 380. The Attorney-General held, 
however, that although such appointments were " illegal, yet that the Judg- 
ments given and acts done by such Judges will be good," as in the case of 
officers de facto. 



g6 THE GOVERNOR'S EXECUTIVE POWERS. 

by any royal instructions or proclamation ; or by letters from 
secretaries of state: It cannot be superceded, or in part 
annulled, by the issuing out of any other commissions not 
known to this constitution." 1 

It is probable that this was a prevalent view among the 
colonists themselves, though its strict legal accuracy may 
perhaps be open to question. It must be said, also, that the 
commissions and instructions were remarkably free from arbi- 
trary alterations. There was, it is true, a development from 
simplicity to complexity, from the extremely vague and gen- 
eral terms of the early commissions to the elaborate and fairly 
accurate definition of powers found in the commissions and 
instructions of the royal governors toward the close of the 
colonial period. This progress is palpably marked by the 
striking increase in the length of these documents, as seen 
by contrasting the first brief royal commissions in Virginia 
after the overthrow of the London Company with the formida- 
ble commissions of the next century, accompanied as they were 
by instructions like those to Governor Dobbs in 1754, which 
contained more than a hundred articles. During the last 
century of provincial government, however, this expansion was 
mainly in the direction of a more accurate definition of powers 
previously given, together with a few further limitations im- 
posed upon the governor's freedom of action. The commis- 
sion of a new governor in Massachusetts or New York differed 
very slightly, if at all, from that of his immediate predecessor; 
and such changes as were made usually came about gradually, 
and did not seriously affect the stability of the provincial 
constitution. 

In addition to the set of instructions given to the governor 
on his assignment to a province, he received from time to time 
other instructions, some of which had a permanent character 
and were thus likely to be included in the regular set of 
instructions to the next governor, while others were merely 
orders and directions intended to serve temporary ends. These 
additional instructions might take the form either of orders in 
council, or of instructions from the Board of Trade or the 

1 Pownall, Administration of the Colonies, 54. 



PROVINCIAL AND PARLIAMENTARY ENACTMENTS. 97 

secretaries of state. The instructions relating to trade formed 
a distinct body of articles governing the conduct of the gover- 
nor as the agent of the home government in the enforcement 
of the navigation laws. 

But these were not the only instruments that defined the 
governor's powers or imposed duties upon him. He had fur- 
ther to govern "according to such reasonable Laws and Stat- 
utes" as might be enacted by the provincial legislature. * These 
laws might, and frequently did, conflict with the directions of 
the royal commission or instructions, and many of them were 
disallowed for that reason; but a still larger number — such as 
those providing for appointments by the assembly, or interfer- 
ing with the management of military operations, or containing 
provisions inconsistent with those instructions which limited 
the governor's assent to bills — were passed and went into 
operation. This result came about partly because in many 
cases the acts were merely temporary, partly because they were 
not noticed, and partly also because the assembly was strong 
enough to have its own way. Such acts, though often disal- 
lowed, do not seem to have been ordinarily regarded as ipso 
facto null and void because they were in conflict with a funda- 
mental law. 2 

The governor's authority was also modified to an important 
extent by local usages of various sorts. Irregularities once 
weakly or inadvertently acquiesced in gradually became too 
deeply rooted to be disturbed, and often resulted in a serious 
diminution of the governor's powers. Finally, with the de- 
velopment of parliamentary control over the colonies, another 
element arose which must be taken into account, namely, acts 
of Parliament conferring privileges and imposing duties upon 
the provincial governors. Such provisions appear in the navi- 
gation acts of the reign of Charles II., and they were extended 

1 See commission to Bernard, § 10. 

2 Note, however, the opinion of the attorney-general of Barbadoes on the 
act of the assembly of that colony providing for the creation of paper 
money. He held that the assembly could not enact a law taking from the 
governor powers conferred on him by his commission. See Chalmers, 
Opinions, 373 seq. 

7 



98 THE GOVERNOR'S EXECUTIVE POWERS. 

by statutes of William III. and later sovereigns. In general, 
these acts imposed upon the governor the duty of cooperation 
in the enforcement of the navigation laws. 1 

Of these various instruments by which the governor's powers 
were either conferred or defined, the most important were the 
commission and the instructions, interpreted by the analogy 
of the royal prerogative and modified by usages springing up 
in each province. Before leaving this subject and proceeding 
to a discussion of the particular powers granted and defined in 
these ways, it may not be out of place to quote the quaint 
phraseology of a contemporary writer, probably James Glen, 
once a royal governor of South Carolina. He writes: "The 
Governor is appointed by Patent, by the title of Governor in 
Chief, and Captain-General in and over the province; He 
receives also a Vice Admiral's Commission: But alas! these 
high sounding titles convey very little Power, and I have often 
wished that Governors had more; I cannot, however, help 
making this disinterested Remark, that though a Virtuous 
Person might be trusted with a little more power, perhaps 
there may be as much already given, as can safely be delegated 
to a w'eak or a wicked Person ; and considering, that such may 
in ill times happen to be employed, a wise and good Prince 
will therefore guard against it. " 2 

Historically one of the first departments of executive power 
to assume prominence was the military power, the command 
of the armed forces of the State. By the English constitution 
the king was regarded as the commander-in-chief of the army 
and navy; he had the sole right to raise armies and fleets and 
to regulate them; it was his prerogative to establish and gar- 
rison forts and other places of strength. 3 In this, as in other 
matters, the governor was the king's representative. His 
commission authorized him, either directly or through officers 
of his appointment, to arm, muster, and command all persons 

1 See above, p. 68. 

2 Glen, Description of South Carolina, in Carroll, Historical Collections, 
ii. 220. 

8 Blackstone, Commentaries, i. 262. 



MILITARY POWERS. 99 

residing within his province; to transfer them from place to 
place; to resist all enemies, pirates, or rebels; if necessary, 
to transport troops to other provinces in order to defend such 
places against invasion; to pursue enemies out of the province; 
in short, to do anything properly belonging to the office of 
commander-in-chief. These powers were to be exercised by 
the governor independently. Furthermore, he might, with 
the advice and consent of the council, establish fortifications 
and furnish them with supplies; 1 and in time of actual war 
he might also with the council's consent execute martial law. 2 

Similar powers were given to the proprietors of Maryland 
and Pennsylvania. The proprietor of Maryland, for example, 
was authorized to execute all powers properly belonging to the 
office of captain-general; to summon to his standards all the 
inhabitants of the province; to wage war; and to execute 
martial law. 3 The Massachusetts charter of 1691 conferred 
like powers upon the new royal governor, but with two impor- 
tant restrictions, namely, that the governor was forbidden to 
take men out of the colony without the consent of the General 
Court or without their own free consent, or to execute martial 
law without the approval of the council. 4 

The governor was thus the head of the provincial military 
system, with the right of appointing subordinate military offi- 
cers, and also of calling upon all inhabitants for military ser- 
vice in the defence of the province or in the suppression of 
rebellion. He was not, however, permitted by his instructions 
to declare martial law except in time of war, and then only 
with the advice and consent of the council. 

In practical operation, however, the scope of the military 
powers of the governor was far from being as large as the terms 

1 Commission to Bernard of New Jersey, 1758, §§ 19, 20 ; to Allen of New 
Hampshire, 1692, p. 60; to Cornbury of New Jersey, 1702, p. 496; to Dobbs 
of North Carolina, 1761, p. 529. 

2 Instructions to Bernard, § 72; to Dudley of Massachusetts, 1702, p. 
no; to Dobbs, 1754, § 113 ; to Dunmore of Virginia, 1771, § 78. 

8 Charter of Maryland, 1632, § 12, in Bozman, History of Maryland, ii. 
9; charter to William Penn, 1681, in Poore, Charters and Constitutions^ 
ii. 1509. 

4 Massachusetts charter of 1691, in Poore, i. 942. 



100 THE GOVERNOR'S EXECUTIVE POWERS. 

of the commission would indicate. Even if the governor's 
powers as thus denned received the fullest recognition, they 
must have been quite useless without financial support from 
the assembly, a support which was often grudgingly and uncer- 
tainly given. 1 Moreover, some positive limitations were im- 
posed either by law or by custom, as, for example, in the 
instance already noticed regarding the clause of the Massa- 
chusetts charter which required the consent of the General 
Court for the transportation of troops out of the province. 
The same principle, though not similarly embodied in the 
fundamental laws of the various provinces, seems to have been 
insisted on by other provincial assemblies. 2 

Furthermore, the right of the provincial governor to com- 
mand the military service of the citizens and to maintain 
proper discipline depended largely, even for its legal sanction, 
upon acts of the assembly, which were known as the militia 
laws. The general character of this legislation may be suffi- 
ciently indicated by citing as an example the Georgia statute 
of 1755. This law provided, in the first place, for the enlist- 
ment of all males between the ages of sixteen and sixty, and 
authorized the governor to issue orders regulating the number 
of men in each company. It fixed penalties for neglect of 

1 Governor Dinwiddie of Virginia writes on one occasion that it is im- 
practicable to conduct any expedition with dependence upon assemblies. 
See Dinwiddie Papers, i. 325. 

2 For assertions of the operation of this principle in Virginia, see Ibid., 
i- I 35i 377 5 Hening, Statutes, vi. 548, vii. 17. A Maryland act of 1650 
denied the governor's right to compel freemen to serve out of the province; 
but in 1 661 this authority was granted for a brief period. In 1757, however, 
Governor Sharpe of Maryland had to meet the same objections from the 
assembly to the call for service beyond the frontier {Maryland Archives, 
i. 302, 407, ix. 121 seq.}. In the same year the Pennsylvania assembly re- 
fused to allow the militia of that province to be transported to the Carolinas 
{Ibid., ix. 7). In 1759 tne North Carolina militia refused to march out of 
the province against the Cherokees, on the ground that they were not 
obliged by law to do so {North Carolina Records, vi. 119, 141-142). The 
Georgia militia law of 1755 expressly confined the use of the militia to the 
province (Jones, Colonial Acts of Georgia, p. 9, § 14). Cf. the letter of 
Governor Morris, New Jersey Docutnents, vi. 186; Allinson, Acts of 
Assembly, 1746, ch. 200, and 1757, ch. 294. 



MILITIA LAWS. 10 1 

military obligations by officers or men. It authorized the 
governor, in case of invasion or insurrection, to raise, with 
the advice and consent of his council, as many regiments as 
he might consider necessary and march them to such places 
within the province as he might think fit. It gave him author- 
ity also to draft men and to impress boats and arms. 1 

The assemblies realized the importance of this method of 
holding the governor in check, and often pushed it to an 
extreme point, requiring the governor, as a rule, to depend 
upon temporary acts for the enforcement of the simplest mili- 
tary obligations. Terms of one, two, and three years were 
commonly set for the duration of these militia acts. 2 Some 
of the colonies remained for long periods of time without any 
militia law, or at least without any which was effective. 
In North Carolina it was only after several years of unsuccess- 
ful effort on the part of the governor that the assembly was 
finally persuaded to pass satisfactory measures. 3 When the 
acts were of short duration, it was often difficult to secure 
regular renewals. In 1752, for example, Governor Clinton of 
New York complained that for four years the assembly had 
neglected to pass the regular annual militia law. 4 In New 
Jersey, as well as in Pennsylvania, the Quaker influence was a 
source of embarrassment. 5 

These were not the only ways in which the assemblies showed 
their jealousy of the governor's military powers. An interest- 
ing illustration of the kind of opposition which a governor had 
to meet in the conduct of military operations is to be found in 

1 Jones, Colonial Acts of Georgia, 9 sea. Cf . Acts and Laws of New 
Hampshire (1771), ch. 67 (act of 171 8). 

2 The New York and New Jersey acts usually ran for one year only 
{New York Acts of Assembly, 1691-1718, pp. 53, 137, 146, 149, 216, 232; 
Laws of New York, 1 691-1773, chs. 563, 573, 598, 617; Allinson, New 
fersey Acts of Assembly, 1746, ch. 200). In Virginia, Maryland, and Penn- 
sylvania the periods varied from one to seven years (Hening, Statutes of 
Virginia, v. 99, vi. 118, 350, 544, 564, vii. 92, 106, 115, 364; Bacon, Laws of 
Maryland, 1692, ch. 83, 1714, ch. 3, and passim j Cooper, Statutes of South 
Carolina, ix. passim, especially p. 645). 

8 North Carolina Records, iv. 816, 834, 917. 

4 New York Documents, vi. 765. 

5 New fersey Docume7its, vi. 104-105. Cf. Ibid,, Hi. 167, 338. 



102 THE GOVERNOR'S EXECUTIVE POWERS. 

the conflict between Governor Sharpe and the Maryland assembly 
during the French and Indian War. The governor wished to 
collect troops for an expedition to the westward, claiming that 
he was empowered to do so both by his commission and by 
an act of 171 5, which, as he held, was still in force. The 
assembly denied both of these propositions, and moreover 
insisted that the act in question applied only to cases of actual 
invasion. The governor, on the other hand, maintained that 
there was a state of invasion ; whereupon the assembly argued 
that, although there had been incursions, there had been no 
invasion, a distinction which the governor characterized as 
nothing but a quibble. The assembly held that the mere 
apprehension of an invasion was not a sufficient ground for 
marching the militia; while the governor very naturally in- 
sisted that such an interpretation would prevent him from 
taking action until the enemy might be in the heart of the 
province. 1 To illustrate popular opinion within the province, 
Governor Sharpe cites the proposal of Hammond, a leading 
member of the assembly. This gentleman proposed merely to 
"recommend " the people of the province to supply themselves 
with arms and to learn how to use them, saying that, in his 
opinion, anything more than such a recommendation would 
"abridge the Liberty, to which as Englishmen they have an 
inviolable Right." 2 

The Pennsylvania militia law passed in 1755 was characterized 
by Governor Dinwiddie of Virginia as a "Joke on all military 
Affars," 3 and was finally disallowed by the home government 
because it provided for the election of officers by ballot and 
failed to fix proper penalties for neglect of military obliga- 
tions. 4 Occasionally in times of pressing danger the assembly 

1 For this controversy, see Votes and Proceedings of the Lower House, 
1758, Feb. 23, March 6, April 1, May 5, 8; Sharpe to Pitt, August, 1758, 
Maryland A?'chives, ix. 249. 

2 Sharpe to Calvert, Ibid., vi. 491. 
8 Dinwiddie Papers, ii. 313. 

4 Votes of Pennsylvania, iv. 629. In June, 1757, the assembly voted 
that there was no propriety in subjecting the people of a whole community 
to the rules and regulations imposed upon the mercenary soldiers of the 
crown. In response to the governor's suggestion that the Delaware assem- 



MILITARY SERVICE OUTSIDE OF THE PROVINCE. 103 

saw the necessity of giving the governor a looser rein; 1 but 
the tendency was rather to tie up the appropriations so closely 
as to limit his freedom of action as far as possible. It will be 
seen later that this process was carried so far as to deprive the 
governor of his legitimate executive functions. 

In a consideration of the militia, as in other departments of 
the colonial government, the double character of the governor 
must be kept in mind. He was the head of the provincial 
administration, but he was more than that : he was the agent 
of the crown, charged with the maintenance of its interests in 
America; and consequently, in the discharge of his duties he 
was often led beyond the limits of his own province. In some 
instances royal governors were invested with a certain control 
of the militia of the neighboring charter colonies : for example, 
Governor Phips of Massachusetts was put in command of the 
militia of Rhode Island and New Hampshire, and Governor 
Fletcher of New York in command of the Connecticut militia. 
Both of these cases, however, may fairly be regarded as excep- 
tional; and ultimately the charter colonies asserted success- 
fully their independence in this as in other departments of 
government. 2 

bly had set a good example, particularly by conferring upon the governor 
the right to make regulations for the government of the militia, the assem- 
bly declared that the governor would find it difficult to persuade a free 
people to agree with him (Ibid., iv. 716). 

1 In Virginia, for example, the governor was at times allowed a moder- 
ate discretion in the use of funds for military purposes (see e. g. Hening, 
Statutes, v. 93). For similar acts in South Carolina, see Cooper, Statutes, 
ii. 320, 333. The governor had authority over regular troops only when no 
general officer of the crown was in the province; at such times he might 
give orders to the military for the service of the province (see Stokes, Con- 
stitutio?i of the British Colonies, 187-188). 

2 The commission to Phips first named him captain-general in Rhode 
Island, Connecticut and New Hampshire. Phips visited Rhode Island, but 
was unsuccessful in his attempt to secure recognition (Hutchinson, History 
of Massachusetts, ii. 20; New York Documents, iv. 30). Governor Fletcher 
of New York found the same difficulty in enforcing his authority in Con- 
necticut under his commission of 1693. He visited the latter colony and 
offered Governor Treat a commission for the command of the Connec- 
ticut militia. Treat, however, refused this recognition of Fletcher's supe- 
rior authority, and his example was followed by other officers of the 



104 THE GOVERNOR'S EXECUTIVE POWERS. 

Nevertheless, the governor did have an important part in 
the general military operations carried on by the crown in 
America. As early as 1687, Governor Dongan received a royal 
letter directing him to defend the Indian allies, to demand sat- 
isfaction from the governor of Canada, and to call on the 
other provincial governments for assistance. 1 In 1692, Gov- 
ernor Fletcher, then of Pennsylvania, was directed to assist 
the governor of New York with troops, and to agree with the 
governors of New England, Maryland, and Virginia about the 
quotas required from their respective colonies. 2 A circular 
letter of the year 1754, sent to the governors of the different 
colonies, shows fairly well the sort of cooperation expected. 
The circular begins with an account of the military prepara- 
tions then making, and proceeds with instructions to the gov- 
ernors to take proper measures for collecting troops. They 
were to provide stores, to aid the royal officers in their move- 
ments, to enforce the orders of the latter, to secure adequate 
appropriations from their assemblies, and finally to confer with 
the royal officers and with the other governors in regard to the 
general plan of operations. 3 In response to these directions, 
the governors of North Carolina, Maryland, and Virginia ar- 

colonial militia. Fletcher then issued a commission declaring all former 
commissions invalid ; but he was finally obliged to leave the colony without 
any tangible results to show for his visit. The Board of Trade decided 
that the crown might appoint a commander-in-chief for the colonies in time 
of war, but that in time of peace the militia of each colony should be com- 
manded solely by its governor according to its charter. In the commissions 
and instructions to Dudley and Shute of Massachusetts there were similar 
provisions with reference to the Rhode Island militia. See Fletcher's com- 
mission, New York Documents, iv. 29 ; Trumbull, History of Connecticut, 
i. 392-395, and Appendix, xxv. ; Dudley's instructions, pp. 101-102. Cf. 
Chalmers, Revolt, ii. 11; New Jersey Documents, ii 411. 

1 New York Documents, iii. 503. 

2 Maryland Archives, viii. 540. In 1709 three governors, Ingoldsby of 
New York, Saltonstall of Connecticut, and Gookin of Pennsylvania, sat to- 
gether as a military council at Fort Ann, issuing commissions to military 
commanders and signing military orders of various sorts. It is noticeable 
that the list includes a proprietary and an elective as well as a royal gov- 
ernor. See New Jersey Documents, xiii. 343, 346. 

3 North Carolina Records, v. 144 d. 



THE GOVERNOR AS VICE-ADMIRAL. 105 

ranged a plan for the Ohio expedition, with Governor Sharpe 
of Maryland as commander of the combined forces. 1 The 
governor most prominent in this line of activity was Shirley of 
Massachusetts, who held at one time the chief command of all 
the forces in America. 2 Governor Sharpe of Maryland was 
conspicuously active in the same way, as was also Governor 
Dinwiddie of Virginia. 3 

The same difficulties which the governor had to meet in 
conducting the military administration of his own province of 
course made themselves felt with additional force in this 
broader sphere of activity. Popular jealousy of the governor 
was reinforced by the strongly-marked spirit of local selfish- 
ness then prevalent among the colonists ; and furthermore, as 
has been already shown, there was in the provincial assemblies 
a strong opposition to any extended plan of military operations 
beyond the lines of their respective provinces. 

In this study of the governor's military functions, it has 
been found, first, that he was the commander-in-chief of the 
military forces of the province, charged with its defence and 
authorized by his commission to demand the military service 
of its inhabitants ; secondly, that he was intrusted with impor- 
tant responsibilities in connection with the general military 
operations of the crown in America; and, finally, that in both 
of these directions he was closely dependent upon the assembly, 
not only for supplies, but also for the legal machinery neces- 
sary for the enforcement of his military authority. 

Besides being commander-in-chief of the provincial forces, 
the governor had also the title of vice-admiral, though this 
name carried with it very little real power, inasmuch as the 
colonies had of course no naval establishments worth men- 
tioning. The governor's admiralty powers, as defined in his 
vice-admiral's commission, gave him authority to collect the 

1 North Carolina Records, v. 144 f. 

2 There is a record of a council of war, held by Governor Shirley in his 
capacity of commander-in-chief, at which were present the royal governor of 
New York, the proprietary governors of Maryland and Pennsylvania, and 
the elective governor of Connecticut. See Maryland Archives, vi. 315. 

8 Ibid., vols, vi., ix., passim; especially vi. 3, 73, 107, 350, ix. 323. 



106 THE GOVERNOR'S EXECUTIVE POWERS. 

royal admiralty dues and to punish all offenders against mari- 
time law; and for these purposes he was to maintain and 
supervise admiralty courts and to appoint all necessary sub- 
ordinates. He might issue commissions to ships' officers 
authorizing them to execute martial law on board their vessels, 
and he might also grant letters of marque and reprisal, though 
this latter right was closely limited and could not be inde- 
pendently used except against powers at war with Great 
Britain. When war had actually broken out, such commis- 
sions to privateers were usually issued on the governor's 
warrant by the judge of the Admiralty Court, who was an 
appointee of the crown. The governor was also brought inta 
direct relations with the royal naval officers, to whom he was 
directed to give due assistance. 1 

One of the usual functions of the executive in any consti- 
tution is that of representing the State in its relations with 
other States, that is to say, in the department of foreign rela- 
tions. This function was one of the prerogatives of the 
English crown. Blackstone says: "With regard to foreign 
concerns, the king is the delegate or representative of- his 
people. '. . . What is done by the royal authority, with regard 
to foreign powers, is the act of the whole nation." As a con- 
sequence of this principle, the king had the prerogative of war 
and peace, the sole right of sending and receiving ambassadors 
and of making treaties with foreign States and princes. 2 It 
is, of course, at once clear that this principle, if applicable to 
the governor at all, could be so only in an extremely limited 
sense, inasmuch as the provincial governor was not the head of 
a state. The province, if it might be regarded as a state in 
any sense, was clearly a dependent one, having no relations 
with other states except through the medium of the home gov- 

1 See the vice-admiral's commission to the governor of New Jersey, 1759, 
New Jersey Documents, ix. 195; instructions to Cornbury of New Jersey, 
1702, §§ 60-62; to Dunmore of Virginia, 1771, §§ 61, 63 ; to Dudley of 
Massachusetts, 1702, pp. no, 114; to Bernard of New Jersey, 1758, §"§ 76- 
77; Stokes, Constitution of the British Colonies, 185; commission to 
Bernard, §§ 21, 22. 

2 Blackstone, Co?n?nentaries, i. 252-261. 



EXTERNAL RELATIONS. 107 

ernment. Nevertheless, each colony had two important kinds 
of external relations, to which may be applied in a rough way 
the principle already stated. These were its relations with 
the Indian tribes on its frontiers and with other colonies. 

The statements of the two proprietary charters in regard to 
external affairs may first be considered. The Maryland charter 
referred to the proximity of barbarous tribes, and simply gave 
the proprietor power to make war against such enemies of the 
province. 1 The charter to William Penn contained a similar 
article, preceded, however, by another which expressly denied 
the right of the proprietor to maintain any correspondence with 
states at enmity with the crown or to declare war against 
friendly states. 2 This article, considered in connection with 
the absence of any clause in the Maryland charter conferring 
the right of making war and peace, appears to give evidence 
that the proprietors had no independent authority other than 
the mere right of protecting themselves from attack. 

The case is still clearer when the position of the royal gov- 
ernor is considered. Obviously, the subordinate officer of the 
crown could not have the power to involve the state in war or 
to conclude any authoritative peace, — a plain inference, which 
is supported by the terms of the royal instructions. By one of 
his instructions the governor was authorized to take temporary 
action, with the advice and consent of the council, in matters 
not covered by his commission; but there was a proviso that 
he was not under any circumstances to declare war, except 
against the Indians in case of emergency; and even in such 
cases immediate notice was to be given to the home govern- 
ment. 3 To show that this exceptional power of declaring war 
was not only granted, but was actually used in a number of 
instances, two or three examples will suffice. Thus in 1722 

1 Bozman, History of Maryland, ii. 9. 

2 Poore, Charters and Constitutions, ii. 1 509. 

8 Instructions to Bernard of New Jersey, 1 758, § 88 ; to Allen of New 
Hampshire, 1692, p. 68; to Dudley of Massachusetts, 1702, p. 115; to 
Dobbs of North Carolina, 1754, § 129; to Dunmore of Virginia, 1771, § 87. 
Note also the clause in regard to maintaining friendly correspondence with 
the Indians: instructions to Bernard, § 74 (instruction to encourage the 
Indians) ; to Dudley, p. 113; to Dobbs, § 125 ; to Dunmore, § 59. 



108 HE GOVERNOR'S EXECUTIVE POWERS. 

Governor Shute of Massachusetts, with the advice of his 
council, issued a declaration of war against the Indians, and 
in 1755 Governor Shirley was formally requested to do the 
same. 1 In 1745 the governor and council of New Hampshire 
also agreed upon a similar declaration of war. 2 

The commission and instructions contained no distinct grant 
of power to make treaties; the governor was simply told in 
somewhat vague terms to maintain a good correspondence with 
the Indians. 3 That treaties were frequently made by the gov- 
ernors, however, is proved by abundant examples, one of which 
is seen in the case of Governor Glen of South Carolina, who 
in a letter of the year 1746 describes his circuit among the 
Indian tribes for the purpose of negotiating with them. 4 In 
1749 and 1754 Indian treaties were also negotiated by the gov- 
ernors of the provinces of New Hampshire and Massachusetts. 5 
When these cases and others that might be cited are borne in 
mind, together with that clause of the governor's instructions 
which authorized him, in matters not covered by his instruc- 
tions, to take action with the advice and consent of his council, 
it is clear that the governor with the council had in this lower 
plane the treaty-making power. 6 Nevertheless, it should be 
said that toward the close of the colonial period the governor's 
sphere of activity was limited by the appointment of special 

1 Hutchinson, History of Massachusetts, ii. 251 ; Massachusetts Province 
Laws, iii. 948 (extract from council records). 

2 New Hampshire Provincial Papers, v. 105, 374. 
8 See above, p. 107, note 3. 

4 South Carolina Historical Society, Collections, ii. 294. 

5 New Hampshire Provincial Papers, v. 131 ; Hutchinson, History of 
Massachusetts, iii. 26. Cf. Provincial Papers, i. 588, iii. 545-546, 693 seq., 
705; Hutchinson, ii. 124. 

6 Cf. North Carolina Records, ii. 56; Dinwiddle Papers, ii. 298. The 
governor seems also to have had more or less right of supervision over the 
ordinary intercourse between Indians and whites. In Pennsylvania and 
Georgia there were laws requiring the governor's license for trade with the 
Indians. In Virginia and North Carolina, at least, the governor's Consent 
was required for the purchase of land from the Indians. See instructions 
to Dunmore of Virginia, 1771, § 59; Pennsylvaiiia Records, v. 194-196; 
New Hampshire Provincial Papers, ii. 17; Jones, Colonial Acts of Georgia, 
190; Hening, Statutes, iv. 461 ; Martin, Iredell's Public Acts, i. 23. 






INTER-COLONIAL RELATIONS. 109 

royal agents for Indian affairs, and later by that of a general 
superintendent of Indian affairs. 

The governor was also the natural representative of the 
province in its relations with other colonies. It has been 
seen that, in the general system of military operations in the 
country, the governors were necessarily brought into close 
correspondence with each other; and also that in the closely 
related department of Indian affairs the colonies were led into 
similar communication and correspondence, conducted usually 
by the governor, though often on consultation with the as- 
sembly. 1 Among the most common subjects of negotiation 
among the different colonies were various questions relating 
to boundaries. At first such negotiations seem to have been 
left to the governor; 2 but gradually there grew up a custom of 
referring them to commissioners chosen by the assemblies, a 
method which was distinctly recommended by royal instruc- 
tions of the year 1730. 3 

In conclusion, then, it may be said that, although the gov- 
ernor had little or nothing to do with what may properly be 
called foreign affairs, yet he was the natural representative of 
the colony in its external relations. He had a limited power 
of declaring war against the Indians, and he might make 
treaties with them, though in both these cases the consent of 
the council was required. He was also the natural represent- 
ative of his own province in its dealings with other provinces, 
though even here his activity was limited to a certain extent 

1 Hutchinson, History of Massachusetts, ii. 287 ; Maryland Archives, 
vi. 10, vii. 265, 319. 

2 North Carolina Records, i. 505, ii. 204; Maryland Archives, iii. 496. 

8 New Ha)npshire Provincial Papers, iv. 568. There is one other inter- 
esting phase of intercolonial relations which is worth noting, namely, that 
relating to the extradition of escaped criminals. Instances of this sort were 
rare ; but when they did occur the governor seems to have been the medium 
of communication. Thus in 1698 Governor Basse of New Jersey refused 
to obey the order of the New York Admiralty Court for the surrender of a 
pirate {New Jersey Documents, ii. 229); and in 1759 Governor Sharpe of 
Maryland sent to the governor of Pennsylvania an order for the extradition 
of offenders who had escaped to that province {Maryland Archives, ix. 
335-336). 



HO THE GOVERNOR'S EXECUTIVE POWERS. 

by the participation of the assembly through its election of 
commissioners. 

Another essential part of the royal prerogative was the 
appointing power. The king was the fountain of honor and 
privilege, with the right to establish offices and to dispose of 
them ; 1 and this essentially executive power was naturally 
intrusted to the provincial governor. Both the Maryland and 
the Pennsylvania charter conferred it in express terms upon 
the proprietor, who may be regarded as the governor-in-chief 
of the proprietary province. The Maryland proprietor was 
empowered to appoint judges, magistrates, and other officers 
"of what kind, for what cause, and with what power soever/' 
whether on land or sea; 2 and similar authority was given to 
William Penn and his heirs. 3 The Massachusetts charter of 
1691 gave the governor somewhat more limited powers, allow- 
ing him to appoint judicial and military officers, but requiring 
that important administrative positions be filled by the Gen- 
eral Court. 4 The royal commissions conferred the right of 
appointment under two separate heads, providing first that the 
governor have the right of naming military officers, a natural 
part of his prerogative as commander-in-chief; and secondly 
that, in consequence of his general obligation to maintain 
courts and enforce the law, he should have the right to appoint 
civil officers of various sorts. 

The authority to name military officers was so plainly a 
matter of course that it was generally admitted. Moreover, 
in this class of appointments the governor was independent, 
being required by neither commission nor instructions to ask 
consent of the council. This independence was, however, a 
natural consequence of the peculiar character of military com- 
mand, with its necessity for a concentration of authority. 5 

Nevertheless, in Pennsylvania an effort was made to limit 

1 Blackstone, Commentaries, i. 271. 

2 Charter of 1632, § vii., in Bozman, History of Maryland, ii. 9. . 
8 Charter of 1681, in Poore, Charters and Constitutions, ii. 1509. 

4 Ibid., i. 942. 

5 See commission to Bernard of New Jersey, 1758, § 19; to Allen of 
New Hampshire, 1692, p. 60; to Dobbs of North Carolina, 1761, p. 529. 



APPOINTMENT OF CIVIL OFFICERS. Ill 

somewhat this power of independent appointment by a provi- 
sion of the militia act, which required the election of officers 
by ballot. This obnoxious provision, however, led to the dis- 
allowance of the act of 1755. 1 

The appointment of civil officers is a subject of much more 
importance. The governor's commission empowered him to 
appoint judges, justices of the peace, sheriffs, "and other 
necessary Officers and Ministers . . . for the better Adminis- 
tration of Justice and putting the Laws in Execution." 2 This 
power of appointment appears to have been at first unlimited; 
the only restriction imposed was the direction "to take care" 
in the nomination of the principal officers to select "men of 
good life," of "good estates and abilities," "well affected to 
Our Government," and not "necessitous people, or much in 
debt." 3 The power of removal was given in terms almost as 
liberal ; the governor was merely forbidden to make removals 
without good cause, a statement of which was to be duly sub- 
mitted to the home government. 4 Soon, however, it was felt 
that additional safeguards were necessary, particularly in order 
to secure proper judicial appointments; whereupon the rule 
was made that commissions to judges and justices of the peace 
should be issued only with the advice and consent of the 
council. 5 In 1754 the Board of Trade declared that the rule 
of concurrent action by the council, though plainly implied in 
previous instructions, had not been strictly adhered to; conse- 
quently the governor was then bound, in more specific and 

1 Votes of Pennsylvania, iv. 629. On this whole paragraph, cf. above, 
pp. 99 seq. 

2 Commission to Bernard of New Jersey, 1758, § 16; to Allen of New 
Hampshire, 1692, p. 59; to Dobbs of North Carolina, 1761, p. 528. 

8 Instructions to Allen, p. 64; to Dudley of Massachusetts, 1702, p. 102; 
to Dobbs, 1754, § 9 ; to Bernard, § 9. 

4 See instructions to Allen of New Hampshire, 1692, p. 66; to Cornbury 
of New Jersey, 1702, § 41. It should be said, however, that the Massachu- 
setts charter of 1691 distinctly required the consent of the council to all civil 
appointments made by the governor. See Poore, Charters and Constitu- 
tions, i. 942. 

6 Instructions to Hunter of New York, 1709, § 43; to Burrington of 
North Carolina, 1730, § 44; to Morris of New Jersey, 1738, § 36. 



112 THE GOVERNOR'S EXECUTIVE POWERS. 

unmistakable terms, not to appoint judicial officers without 
the advice and consent of at least three councillors signified in 
council. 1 

After this glance at the formal provisions of the commis- 
sion and instructions, the actual practice of the different 
colonies may well be examined. In the first place, the con- 
current action of the council in appointments was so fruitful a 
source of controversy that it is difficult to lay down any general 
rule applicable to the practice of all the colonies. On the one 
hand, the council sometimes undertook to assume undue con- 
trol. Thus in Massachusetts the actual nomination of officers 
was at first left in the hands of the council, from which it 
was finally wrested with considerable difficulty. 2 In North 
Carolina also the records show that, during the period of 
the royal government, justices and sheriffs were regularly 
appointed and removed by orders in council. 3 On the other 
hand, the governor was restive under restrictions of any kind. 
For example, in 171 1, Governor Spotswood of Virginia com- 
plained of an "unreasonable " proposal of the assembly to make 
the consent of the council necessary in appointments. 4 Again, 
in 173(5, Governor Belcher of New Hampshire informed his 
council that the nomination and appointment of officers be- 
longed to him, but that he was willing to listen to the objec- 
tions of the council and to give them due consideration; 5 and 
afterwards, when governor of New Jersey, he took similar 
ground. 6 It is clear that the more specific directions of 1754 
were needed. 

1 Instructions to Dobbs of North Carolina, 1754, § 62 ; to Bernard of 
New Jersey, 1758, § 41 ; to Dunmore of Virginia, 177 1, § 45. The pro- 
vision in regard to removal was unchanged. Cf. Bernard's instructions, 
§ 42; cf. North Carolina Records, v. 11 04. 

2 Hutchinson, History of Massachusetts, ii. 20 ; Chalmers, Revolt, i. 
284. 

8 North Carolina Records, vi. 218, 762, 771. 

4 Letters of Governor Spotswood (Virginia Historical Society, Collections, 

i), 53-54- 

5 New Hampshire Provincial Papers, iv. 773. 

6 See a letter from John Cox to James Alexander, May, 1748 : " We had 
A long dispute About the Power of the Councill he was in Efect for Making 



THE GOVERNOR'S PATRONAGE. 113 

The amount of patronage thus placed in the governor's 
hands varied in the different colonies. In Massachusetts 
many of the important officers were appointed by the General 
Court, subject in this as in all other matters to the governor's 
approval; and, as will be seen later, this practice had its in- 
fluence on the other colonies. 1 In Virginia the governor's 
patronage, according to an account published in 1727, was 
very extensive, including the appointment not only of all mili- 
tary officers by commission during the governor's pleasure, but 
of nearly all civil officers of importance. 3 In New Hampshire, 
in 1730, appointments were with very few exceptions in the 
hands of the governor. 3 Anthony Stokes, the writer of a 
valuable work on the colonial constitution, but a man of dis- 
tinctly royalist tendencies, laid down the general rule that the 
governor had the disposal of all offices not specifically retained 
within the direct control of the crown, and even that vacancies 
arising in such royal appointments were temporarily filled by 
him. 4 There is, however, another side to the question. In 
South Carolina the patronage of the governor was insigni- 
ficant, being limited chiefly to the appointment of military 
officers and justices of the peace, "offices of no profit, and some 
trouble." 5 Such limitations were due partly to encroachments 
by the assembly and partly to the tendency of the home gov- 
ernment to keep in its own hands some of the more important 
appointments. In addition to the offices connected with the 
customs and the Indian department, the crown reserved for 
its own appointment the offices of secretary of the province, 

of us Solemn Witnesses to his Appointments by Consenting to Persons he 
Should Name & propose And I insisted On what I concieved to be our 
rights — Which at last Ended in a declaration that tho his Sentiments were 
So Yet he would Not appoint officers Without Advice of Councill " {New 
Jersey Documents, vii. 129.) 

1 See below, ch. x. 

2 Hartwell, Blair, and Chilton, Present State of Virginia, 20 sea. 
8 New Hampshire Provincial Papers, iv. 533. 

4 Constitution of the British Colonies, 184. 

6 Glen, Description of South Carolifia, in Carroll, Historical Collections, 
ii. 221. 

8 



114 THE GOVERNOR'S EXECUTIVE POWERS. 

chief -justice, attorney-general, auditor-general, receiver-gen- 
eral, and sometimes that of clerk of the assembly. 1 

In reply to the question which now arises as to the way in 
which this power vested in the governor was exercised, it must 
be said that much of it was corruptly used. Maryland furnishes 
a glaring example of a regular traffic in offices, though for 
this practice the proprietor and not the governor was chiefly 
to blame. 2 In South Carolina a similar corrupt use of patron- 
age was charged against one of the acting governors, of whom 
it was said that with him four hundred pounds would make a 
provost marshall. 3 Some governors, apparently, were inclined 
to provide for their families out of this colonial patronage, 
while others used it to extend their influence and to promote 
the passage of measures in which they were interested. 4 An 

1 Glen, Description of South Carolina, in Carroll, Historical Collections, 
ii. 221 ; Documentary History of New York (1849), l - 77°~77 2 (Tryon's 
report of 1774); North Carolina Records, vi. 620 ; New fersey Documents, 
vii. 246, viii. (2), 86, ix. 257, 620. In Maryland, proprietary influence in 
colonial appointments was very marked ; in one instance the proprietor even 
went so far as to commission a justice of the peace. Furthermore, even 
when the appointment was not made by the proprietor directly, the governor 
was tied up by orders to appoint particular persons. Governor Sharpe com- 
plained that he was not allowed to dispose of the most honorable and lucra- 
tive offices, and that persons who desired offices would apply to the proprietor's 
secretary (Maryland Archives,^. 117, vi. 184, 238, 400, ix. 34-35). Stokes 
condemned severely the common practice of granting commissions in England 
to persons who exercised colonial offices by deputy, saying that in his opinion 
the governor thus lost weight (Constitution of the British Colonies, 138). 

2 This traffic was largely carried on by Cecilius Calvert, secretary to 
the proprietor. With other friends of the proprietor, he was accustomed 
to levy certain charges upon persons appointed to office in the colony, 
requiring the judges of the colonial land office, for example, to remit to him 
a part of their profits. Sharpe writes an interesting letter to the secretary 
about the case of a certain Mr. and Mrs. Graham, who had always re- 
ceived fifty pounds per annum from the present sheriff. Another relative 
asked to be allowed to appoint the next incumbent, in order that he might 
continue to receive the fifty pounds a year assigned by the . proprietor ; 
whereupon the governor is charged with the ungracious duty of making the 
most advantageous bargains. See Sharpe's Correspondence, Maryland 
Archives, vi. 238, ix. 64. 

3 South Carolina Historical Society, Collections, i. 237. 

4 Governor Dobbs of North Carolina successfully recommended his son 



RESTRICTION OF THE APPOINTING POWER. 115 

illustration of this latter use of the power is suggested by the 
complaint of an eminent contemporary authority, to the effect 
that the governor, by the diminution of his patronage, was left 
without means of stopping the mouths of demagogues. 1 Again, 
Governor Dobbs of North Carolina revenged himself on the 
leader of the opposition in the assembly by depriving the 
gentleman of all his offices; 2 and Governor Morris of New 
Jersey appointed to a judgeship the late speaker of the as- 
sembly, "who had been as serviceable as he could." 3 This 
question of the use of patronage will occur again when the 
relation of the governor to the assembly is considered. 

It was inevitable that such abuse of power should lead to 
efforts on the part of the assembly to restrict its exercise. 
The first step taken was the imposition of certain qualifications 
for appointment, a provision which was aimed particularly at 
the practice of appointing non-residents to colonial offices. 
An early statute of New Jersey directed that none but resident 
freeholders should be appointed to offices, civil or military, 
within the province. 4 A similar residential qualification for 
offices in the colony was fixed by the Maryland assembly in 
1704. 5 In 1705 Virginia passed more thoroughgoing acts 
governing the appointment of sheriffs, declaring that a candi- 
date for that office must be a justice of the peace, and that he 
must have resided in the province at least three years. 6 An- 
other illustration of popular distrust of the appointing power is 
to be found in the fact that numerous efforts were made to 

for appointment to the council. Governor Cosby of New Jersey urged the 
appointment of " my son Billy " as secretary of the province, a post to 
which he had already given his son a provisional appointment until the 
royal pleasure should be known. See North Carolina Records, v. 440, 649 ; 
New Jersey Documents, v. 321. 

1 Stokes, Constitution of the British Colonies, 138. 

2 North Carolina Records, vi. 218. 
8 Morris Papers, 48. 

4 A special exception was made of the office of secretary. See Learning 
and Spicer, Gra?its, Concessions, etc., 368 seq., especially 370; Allinson, 
Acts of Assembly, 1748, ch. 208. 

5 Bacon, Laws, 1704, ch. 93. 

6 Hening, Statutes, iii. 246, 250. 



Il6 THE GOVERNOR'S EXECUTIVE POWERS. 

regulate the tenure of certain offices in the gift of the gover- 
nor. A Maryland act of 1662, for example, provided for the 
annual appointment of sheriffs, with the limitation that no 
person should fill the office for two successive terms; and later 
acts of the same province fixed a tenure first of two and then 
of three years. 1 Similar acts were passed in North Carolina, 
New Jersey, and Delaware. 2 

Occasionally still more serious limitations were laid upon 
the governor's right of nomination. A Maryland law of 1662, 
for example, enacted that the commissioners of the county 
courts should annually present to the proprietor or the governor 
the names of three persons who had not been sheriffs during 
the previous year, from which the governor was to choose one. 
The act was temporary, however, and the restriction was aban- 
doned. 3 Elsewhere the attempt met with better success. A 
Virginia act of 1705 provided that the county courts should 
annually present to the governor the names of three persons 
as candidates for the office of sheriff, one of whom the gov- 
ernor was required to appoint. 4 In Pennsylvania the people 
had from the beginning a similar share in the nomination of 
sheriffs arid coroners. 5 

The assembly had, furthermore, an indirect and somewhat 
questionable method of controlling appointments through its 
power over the purse. Indeed, it was a common practice of 
the colonial assemblies to withhold altogether the salaries of 
judges whose appointment they disapproved. In New York, 
salaries were granted annually and specifically by name to the 
person then holding the office; the governors claimed, and 

1 Maryland Archives, i. 450; Bacon, Laws, 1692, eh. 25; 1715, ch. 46, 
§ 10. 

2 Martin, Iredell's Public Acts, i. 42; Laws of Delaware (1797), i. 63. 
Cf. also Learning and Spicer, Grants, Concessions, etc., 368 seq.j Allinson, 
Acts of Assembly, 1748, ch. 208. 

3 Maryland Archives, i. 451, v. 138, 469. 

4 Hening, Statutes, iii. 246. 

5 See Frames of Government of 1682 and 1683, in Poore, Charters and 
Constitutions, ii. 1522, 1529; Charter of Privileges, 1701, Ibid., 1538; 
Statutes at Large of Pennsylvania (1896), ii. 272. Cf. Laws of Delaware 
(1797), i. 63. 



FINANCIAL POWERS. 117 

apparently with reason, that this was done for the purpose of 
controlling appointments. 1 

Thus in almost all the colonies the appointing power was 
subject to important limitations imposed by colonial statutes. 
Not content with these checks, however, the assemblies entered 
upon a more radical course of action : from measures restrict- 
ing the exercise of the appointing power, they went on to 
wrest from the governor and to take into their own hands the 
actual power of appointment itself. This policy of the assem- 
blies, and the long and bitter conflicts to which it gave rise, 
may best be studied after a consideration of the governor's 
relations with the assembly. 2 

In the early part of the colonial era the financial powers of 
the governor had, as has been seen, been very extensive. The 
introduction of representative assemblies, however, gradually 
deprived him of these abnormal powers, rendering him de- 
pendent upon the assembly for supplies. Naturally, the legis- 
latures of those days were not inclined to grant any larger 
supplies than they considered strictly necessary for the support 
of the government ; and, furthermore, the body which granted 
money began to claim the right of determining how that money 
should be spent. Hence the financial powers of the governor 
became very much reduced. There were, however, two impor- 
tant functions of this class which continued to hold their place 
in the royal commission and instructions, namely, the regula- 
tion of salaries and fees, and the issue of warrants for the 
expenditure of money. 

The royal instructions directed the governor, with the advice 
and consent of the council, to regulate all salaries and fees of 
provincial officers. 3 

Of these two functions the regulation of salaries may first 
be considered. It is clear that when, as was usually the case, 
official salaries were paid by special grants of the assembly, 

1 New York Documents, v. 844, vi. 432-437, 764. 

2 Cf. ch. x. below. 

8 Instructions to Bernard of New Jersey, 1758, § 44 ; to Allen of New 
Hampshire, 1692, p. 66; to Dudley of Massachusetts, 1702, p. 108; to 
Dobbs of North Carolina, 1754, %&$', to Dunmore of Virginia, 1771, § 48. 



Il8 THE GOVERNOR'S EXECUTIVE POWERS. 

their amounts must of necessity have been determined by the 
same authority. In Virginia, however, where a considerable 
portion of the provincial establishment was provided for by a 
permanent fund settled by the assembly upon the crown, not 
only was the governor directed to regulate the salaries of 
officers, but he had the power to do so. 1 In New York there 
was a spirited contest over the question. In that colony, in 
the early part of the last century, it was customary, in grant- 
ing supplies, to pass at the same time resolutions fixing the 
salaries of the various officials. Governor William Burnet, 
who held office in 1720, at first issued his warrants in accord- 
ance with these resolutions, though six years later he refused 
to obey the resolves of the assembly. His successor, Mont- 
gomerie, however, seems practically to have yielded the point 
to the assembly, which by 1729 had completely gained its 
end. 2 Salaries were thenceforth regularly fixed by annual acts 
of appropriation, and the regulation of official salaries thus 
passed entirely out of the governor's hands. 3 

The question as to the regulation of fees is more difficult. 
It is clear that the governor's prerogative in this matter was 
not exclusive, inasmuch as acts of assembly for the regula- 
tion of officers' fees begin early and are numerous. In Mary- 
land a law was passed, in 1676, providing that no officer 
mentioned in the act should take other fees than those speci- 
fied; 4 and from 1699 to 1763 a large number of similar 
laws are recorded. 5 Virginia enacted a law regulating fees 
as early as 1699. 6 Several such acts were passed in North 
Carolina; indeed, in 1736, Governor Johnston himself recom- 
mended the regulation of fees by the legislature, and some 

1 Act of assembly, in Hening, Statutes, iii. 490, especially § 10 ; instruc- 
tions to Dunmore of Virginia, 1771, § 88. 

2 New York Journal of Assembly, i. 448, 580, 585, 646, 700; New York 
Documents, v. 878-879, 885. 

3 Opinion of Attorney-General Bradley, New York Documents, v. 901- 

9°3- 

4 Maryland Archives, ii. 532. For earlier acts, see Ibid., i. 21, 229. 

5 Bacon, Laws, 1699, ch. 49 ; 1700, ch. 7; 1704, chs. 4, 86; 1708, ch. 19; 
1709, ch. 15; 1711, ch. 19; 1714, ch. 5 (for four years); 1763, ch. 18, § 87 seq. 

6 Hening, Statutes, iii. 195. 



REGULATION OF FEES. 119 

years later a law was finally agreed upon. 1 Johnston's succes- 
sor objected to this measure on the ground that it was incon- 
sistent with that article of the instructions which authorized 
the governor to regulate fees; but the Board of Trade decided 
that such legislation was not inconsistent with the instruc- 
tions. 2 Without adding to this list of acts passed by the 
assemblies for the regulation of official fees, it may be said 
that the practice was general. 8 

It is equally clear however, that fees were frequently settled 
by the governor and council without the intervention of the 
assembly. In some of the colonies there were no acts regulat- 
ing fees until a very late date, and consequently there was 
room for action by the governor, who seems not to have been 
slow to exercise his power. New Jersey, for example, furnishes 
a considerable list of ordinances issued by governors for the 
regulation of fees, beginning with one issued by the first royal 
governor and continuing to the time of Governor Belcher, who 
assumed the office in 1747. 4 Other cases may be found in 
the records of New Hampshire, New York, Maryland, and 
Virginia. 5 Popular feeling, however, was so strongly against 
the practice that the assembly of New Jersey, in its remon- * 
strance against Lord Cornbury, declared that it considered the 

1 North Carolina Records, iv. 229, 916. 

2 Ibid., v. 643, 750. 

8 For New Jersey, see Allinson, Acts of Assembly, 1743, ch. 195, and 
1748, ch. 210; for Georgia, Jones, Colonial Acts of Georgia, 321 seq. ; for 
New Hampshire, Provincial Laws, chs. 64, 108 ; for South Carolina, 
Cooper, Statutes, iii. 326, 414, and Chalmers, Revolt, ii. 175; for Massa- 
chusetts, Province Laws, iii. 1743-4 cn - r o> i744~5 ch. 13, 1746-7 ch. 24, 
1750-51 ch. 8, 1752-3 ch. 28, 1756-7 ch. 30. Cf. Proud, History of Penn- 
sylvania, ii. 51. 

4 New fersey Documents, iii. 176, v. 338, xiv. 260, 388; Allinson, Acts of 
Assembly, Appendix. 

6 In 1642 the governor and council of Maryland published a table of 
officers' fees. In 1669 the council expressly declared the right of the pro- 
prietor to settle fees; and in 1682 a similar declaration was made by the 
proprietor himself on the failure of the House to take action. See Maryland 
Archives, i. 162, ii. 176, vii. 401 ; also New York Acts of Assembly, 1691- 
1718, pp. 1 1 5-123; New Hampshire Provincial Papers, \. 454; Dinwiddle 
Papers (Virginia), i. 44-46; North Carolina Records, vi. 288. 



120 THE GOVERNOR'S EXECUTIVE POWERS. 

settling of fees otherwise than by a legislative act to be a 
great grievance and repugnant to Magna Charta; x and a similar 
position was taken by the assemblies of several other colonies. 2 
The attitude of the home government in regard to the ques- 
tion seems not to have been consistent throughout. In 1708, 
after the remonstrance of the New Jersey assembly against 
the conduct of Lord Cornbury, the Board of Trade declared 
its opinion "that no fee is lawful, unless it be Warranted by 
Prescription, or Erected by the Legislature"; 3 but it is doubt- 
ful just how much is meant by the phrase "warranted by pre- 
scription." In the next year the act of assembly regulating 
fees was disallowed, and the new governor, Hunter, was 
ordered, with the advice of the council, to establish fees "upon 
a reasonable footing." This he did by ordinance. 4 In New 
Hampshire, where by 1730 officers' fees were fixed by law, the 
governor was directed by the home government to see that no 
fees were taken in the province, "but what are according to 
law." 5 A South Carolina law regulating fees was condemned 
by the home government, but apparently on the ground that 
fees jwere unduly reduced. 6 In 1757, the Board of Trade in- 
r structed Governor Dobbs of North Carolina that acts of 
assembly regulating fees were not inconsistent with the royal 
instructions, but recognized also a concurrent right of the 
governor and council. 7 

Apart from the question of strict right, it may then be said 
that, although the royal instructions placed in the governor's 
hands the regulation of official fees, the function came to be 
exercised mainly by the assemblies. Some governors, it is 

1 New Jersey Documents, iii. 176. 

2 New York Documents, v. 296 ; McMahon, History of Maryland, i. 
284; Proud, History of Pennsylvania, ii. 51; North Carolina Records, iii. 
151, vi. 288 ; Dinwiddle Papers, i. 44-46. 

3 New Jersey Docu?nents, iii. 327. 4 Ibid., v. 338. 
6 New Hampshire Provincial Papers, iv. 573. 

6 South Carolina Historical Society, Collections, iii. 332; Chalmers, 
Revolt, ii. 175. 

7 North Carolina Records, v. 750. In 1754, the protest of the Virginia 
burgesses against fees not sanctioned by law was rejected. Dinwiddle 
Papers, i. 44-47, 362. 



THE DISPOSITION OF FUNDS. 121 

true, still used their right to a limited extent; but fees were 
for the most part regulated by statutes that provided penal- 
ties for the exaction of other or larger amounts than those 
specified. 

The other important financial function expressly vested in 
the governor by his instructions was the general oversight of 
public expenditures. To this end, it was ordered that all 
money raised should be expended only by warrant of the gov- 
ernor, with the advice and consent of the council. The exer- 
cise of this power was checked on two sides: the instructions 
provided, in the first place, that all accounts should be sent 
to the home government; and, in the second place, that the 
assembly should be allowed to inspect the accounts of money 
appropriated by law. The latter provision was probably the 
more effective safeguard. 1 

The real extent and importance of this power conferred on 
the governor can be determined only by an examination of the 
financial methods prevalent in the different colonies. The 
important question is, of course, whether the requirement of 
the governor's warrant was merely formal, perhaps designed to 
check expenditures by other officers, or whether it was meant 
that the governor should have a real voice. At first, before 
the practice of making minutely exact appropriations became 
general, the governor and council seem actually to have pos- 
sessed considerable discretion in the disposition of money. 2 
The assembly at that time appears hardly to have realized its 
power, — a conclusion suggested by the fact that the New 
Jersey militia act of 1704 was criticised by the Board of Trade 
as giving the governor too much discretion in the expenditure 
of certain funds created by the act. 3 This earlier confidence 

1 See instructions to Bernard of New Jersey, 1758, §§ 19, 20; to Allen 
of New Hampshire, 1692, p. 65 ; to Dudley of Massachusetts, 1702, p. 105; 
to Dobbs of North Carolina, 1754, §§ 29, 30 ; to Dunmore of Virginia, 1771, 
§§ 21, 22. 

2 See e. g. Maryland Archives, viii. 404; Charter and Laws of Pennsyl- 
vania, 281 ; New Hampshire Provincial Papers, ii. 84, iii. 165 sea. Note 
the general absence of detailed appropriations in the early statute books 
and legislative proceedings. 

8 New Jersey Documents, iii. 126. 



122 THE GOVERNOR'S EXECUTIVE POWERS. 

in the judgment and integrity of governors soon passed away, 
however, as it became evident that many of them were un- 
doubtedly corrupt. In evidence of the lack of principle among 
them, reference has already been made to an official report on 
the condition of the plantations. Governor Cornbury of New 
York was a particularly notorious offender; and it is practi- 
cally certain that such cases as his had much to do with the 
distinctly different policy followed by the assemblies of the 
eighteenth century. Indeed, this doubt as to the integrity of 
the executive was expressly stated in the official proceedings of 
the legislature of New York as a reason why means should be 
taken to prevent corrupt expenditure. 1 The natural tendency 
of all legislative bodies to define appropriations closely prob- 
ably worked to the same end. At any rate, the result is per- 
fectly clear: a glance at the statute books of almost any colony 
will show that, by the close of the colonial era, the general 
rule consisted in making detailed appropriations for short 
periods of time. 2 

In the making of these appropriations the governor had a 
gradually decreasing influence. He had himself only a right 
of veto upon appropriation bills as a whole; but the council, 
as the upper house of the assembly, afforded to a certain 
extent a representation of the policy of the executive. The 
lower house, however, soon came to resent the interference of 
the council in financial matters, and a jealousy sprang up, of 
which an early illustration is to be found in the Virginia 
House of Burgesses. This body, in 1666, in reply to the 
governor's request that certain members of the council should 
cooperate with the burgesses in making up the public levy, 
asserted its right to "lay the levy in the house," promising 
that bills should then be presented to the governor for his 
assent or dissent. 3 In 1704 and 1705 the New York council 

1 New York Journal of Assembly, i. 1 70-1 71. 

2 See e. g. New Hampshire Provincial Papers, v. 393 ; New York 
Journal of Assembly, i. 700, 784, 790-791, ii. 9, 14; New York Docu?nents, 
v. 901-903; Cooper, Statutes, iv. 6, 14, 18, 45, 53, 103, 128; Massachusetts 
Province Laws, passim, e. g. 1743-4 ch. 2, 1753-4 ch. 24. 

3 Herring, Statutes, ii. 254. 



MONEY BILLS. 1 23 

returned with amendments supply bills sent up by the House 
of Representatives; whereupon the House resolved that it 
was " inconvenient " to allow the council to amend money 
bills, and returned the bills, having paid no attention to the 
amendments. 1 The Board of Trade vigorously opposed this 
action of the assembly; but the House stood firm. In 171 1 
the controversy was renewed with the same result. Again in 
1750 and 1754 the House refused to admit amendments by the 
council, and finally carried its point. Thereafter money bills 
seem to have been passed without interference from the council 
in the form of amendments. 2 

In spite of the opposition of the home government, which 
never looked favorably upon the pretensions of the assemblies, 
the same policy was followed with more or less consistency in 
the other colonies. 3 When the question was raised in New 
Jersey in 1740, the Board of Trade declared that the council 
had an undoubted right to amend money bills; but such oppo- 
sition from a distant authority could hardly effect much against 
a local representative body which held the purse-strings in its 
hands, and consequently the New Jersey House of Repre- 
sentatives continued to deny to the council the right of amend- 
ing money bills. 4 In this matter, as in many others, the 
colonial assemblies showed that they regarded themselves 
as inheritors of the rights and privileges of the House of 
Commons. 

It may easily be seen that the financial functions of the 

1 New York Journal of Assembly, i. 189-190, 201 ; Chalmers, Revolt, 
i. 358. 

2 New York Journal of Assembly, i. 306 seq., ii. 289, 381 seq., and 
passim, to the close of the volume. 

3 Votes and Proceedings of the Lower House of the Assembly of Mary- 
land, April 28, 1756, May 9, 1758; North Carolina Records, vi. 909; Penn- 
sylvania Records, iii. 534, vi. 40; Votes of Pennsylvania, iv. 516-522; 
Morris Papers, 283; A r ew Jersey Documents, v. 10. The Maryland lower 
house, on April 28, 1756, spoke of its "ancient and undoubted Rights, in 
Case of all Bills for Grant of Aids or Supplies, to direct, limit, and appoint, 
in such Bills, the Ends, Purposes, Considerations, . . . and Qualifications, 
of such Grants, which ought not to be changed by the Upper House": 
Votes and Proceedings, etc., as above. 

4 Morris Papers, 84 ; New Jersey Documents, vii. 407, viii. 28-31. 



124 THE GOVERNORS EXECUTIVE POWERS. 

governor were widely different from those of an executive 
intrusted with the preparation of the budget. He might 
simply recommend in general terms such appropriations as he 
desired, without having any part in the actual work of legisla- 
tion. Indeed, the conditions that have just been described 
generally left the governor and council in the position of a 
mere accounting board, to check expenditures made in accord- 
ance with appropriations of the legislature. 1 Moreover, not 
content with this restriction of the governor's powers, the 
assembly went on to more radical measures, finally placing 
the actual administration of the finances in the hands of its 
own officers. The consideration of these measures will be 
taken up in connection with the study of the gradual assump- 
tion of executive functions by the assembly, either for itself 
or for its appointees. 2 

Certain minor functions intrusted to the governor may now 
be briefly considered. First and perhaps most important of 
these was the pardoning power, a common prerogative of the 
executive. In the English system the right of pardon belonged 
to the»king, on the theory that criminal offences were offences 
against the crown; "for," says Blackstone, "it is reasonable 
that he only who is injured should have the power of forgiv- 
ing." 3 This power, within certain limits, passed naturally to 

1 Even this right was sometimes interfered with, or at least not clearly 
recognized (see New Jersey Documents, xiv. 197; Cooper, Statutes, Hi. 206 
seq., 333; South Carolina Historical Society, Collections, ii. 195). Of course 
the mere failure to mention the governor's warrant in appropriation bills is 
hardly conclusive evidence that it was not required in practice. In fact, the 
statute books of the different colonies contain frequent references to the 
governor's warrant as necessary for the expenditure of public money {North 
Carolina Records, v. 190; New Hampshire Provincial Papers, Hi. 526-529; 
Hening, Statutes, iv. 26, 279; Cooper, Statutes, Hi. 529; Allinson, Acts of 
Assembly, chs. 397, 631). There were some cases in which the assembly, 
by assuming itself the right to pass upon claims in detail, deprived this 
function of the governor and council of nearly all of its importance (see e. g. 
South Carolina Historical Society, Collections, ii. 195 ; cf. Cooper, Statutes, 
Hi. 206; for action of the New Hampshire and Massachusetts assemblies, 
cf. below, p. 181. 

2 See below, ch. x. 

8 Commentaries, i. 269. 



THE PARDONIXG POWER. 1 25 

the governors, who represented the crown in the colonies. 
The proprietary charters of Maryland and Pennsylvania each 
conferred the right of pardon upon the proprietor, — the Mary- 
land charter for all offences against the laws of the province, 
the Pennsylvania charter for all except cases of treason and 
wilful murder. 1 The royal commissions and instructions con- 
ferred the power upon the governor, with the same restrictions 
as those imposed by the Pennsylvania charter, granting him 
in those excepted cases the right of reprieve until the royal 
pleasure should be made known. He was also authorized to 
remit fines and forfeitures not exceeding ten pounds. This 
right of pardon was granted to him to be exercised inde- 
pendently, without reference to the concurrent action of the 
council. 2 

The rule just stated applies to all of the colonies, with 
the possible exceptions of Pennsylvania and of Maryland. In 
Pennsylvania the governor seems to have asked the advice of 
the council with reference to pardons, though the exact ques- 
tion of right is not clear. 3 The first recorded Maryland com- 
mission, that to Leonard Calvert in 1637, gave the governor 
the right of pardon except for high treason; 4 the commission 
to Charles Calvert in 1666 gave him indefinitely the full 
powers of the proprietor under the charter; 5 during the period 
when Maryland was a royal province, the pardoning power was 
granted in the same terms as in the other provinces ; 6 and it 
seems probable, on the whole, that in this as in other matters 
the practice of the royal government was continued after the 
return to the proprietary constitution. 

The general, almost universal rule, then, was that the gov- 

1 Charter of Maryland in Bozman, History of Maryland, ii. 9; of Penn- 
sylvania, in Poore, Charters and Constitutions, ii. 1509. 

2 Commission to Bernard of New Jersey, 1758, §17; to Allen of New 
Hampshire, 1692, p. 60; to Dobbs of North Carolina, 1761, p. 528. Cf. 
instructions to Bernard, § 56; to Dobbs, 1754, § 95; to Dunmore of Vir- 
ginia, 1 77 1, § 43. 

3 Pennsylvania Records, iii. 40-42, no, iv. 503. 

4 Bozman, History of Maryland, ii. Appendix. 

5 Maryland Archives, iii. 543. 

6 See commission to Lionel Copley, 1691, p. 267; instructions, p. 275. 



126 THE GOVERNOR'S EXECUTIVE POWERS. 

ernor exercised the pardoning power except in cases of treason 
and wilful murder; that he had the power of reprieve in those 
cases; and, finally, that his action was independent, not re- 
quiring the concurrence of the governor and council. 

Other minor functions of the governor may be dismissed 
very briefly. The governor was the keeper of the public seal 
of the province, required in the more important state pro- 
cesses. 1 In many of the royal provinces he was authorized, 
with the advice of the council, to grant lands, reserving such 
quit-rents as seemed to him reasonable. 2 An extended con- 
sideration of this latter subject would bring up all the ques- 
tions of land administration in the colonies, and is hardly in 
place here. It may, however, be noted that this power was 
especially liable to abuse. The governors of New York, in 
particular, were charged with corrupt management of the royal 
lands, on the ground that they granted them away for low 
quit-rents in return for certain arrangements by which they 
were to receive a share in the profits of the transactions. 3 

The right to issue charters of incorporation, including 
charters -to towns, furnishes another interesting illustration 
of the governor's position as the representative of the crown. 
The king had the right to issue charters of incorporation; 4 
hence in the provincial governments the governor was naturally 
invested with the same authority, though towns and other 
organizations were also incorporated by act of assembly. 5 

1 Hartwell, Blair, and Chilton, Present State of Virginia, 20 ; Stokes, 
Constitution of the British Colonies, 185; commission to Bernard of New 
Jersey, 1758, § 13. 

2 Commission to Hunter of New York, 1709, p. 97 ; to Dobbs of North 
Carolina, 1761, p. 531; blank commission in Stokes, Constitution of the 
British Colonies, 162. Cf. instructions to Dunmore of Virginia, 1771, § 54; 
to Dudley of Massachusetts, 1702, p. 106. 

8 Lewis Morris to the Board of Trade, 1733, New Jersey Documents, 
v. 353. Cf. Ibid., 363. 

4 Blackstone, Commentaries, i. 273. 

5 See charters of Maryland and Pennsylvania, in Bozman, History of 
Maryland, ii. 16; Poore, Charters and Constitutions, ii. 1512. For 
examples of charters issued by the governor, see North Carolina Records, 
iv. 43 ; New Hampshire Provincial Papers, ii. 107, 722, v. 90. For acts 
of assembly, see New Hampshire Provincial Papers, iii. 620, iv. 262 ; 



CENSORSHIP OF THE PRESS. 1 27 

Another prerogative was that of establishing markets, fairs, 
ports, and havens. The right was given to the governor by 
his commission, 1 and there are some illustrations of its exer- 
cise by the governor and council ; 2 but here again the assembly 
sometimes interposed its action. 3 

The earlier royal governors possessed another power, which, 
if not always effective, at least involved an important prin- 
ciple. The royal instructions for a number of years imme- 
diately before and immediately after the beginning of the 
eighteenth century contained clauses authorizing the governor 
to exercise a sort of censorship of the press, that is, providing 
that no press was to be set up and no book or other matter 
printed without the governor's license. 4 This censorship was 
for some time actually enforced in Massachusetts, but finally 
broke down during the administration of Governor Shute. In 
1 719-1720 Shute attempted first to prevent and then to punish 
the publication of an attack by the House of Representatives 
upon the surveyor of the woods. The attorney-general and 
the council, however, declined to take any responsibility in 
the matter, asserting that there was no ground on which to 
support a prosecution ; whereupon the governor complained to 
the Board of Trade, which, as Chalmers says, "observed the 
most prudent silence." 5 In 1721, Shute recommended a 
measure to punish the authors of factious and seditious papers. 
The House refused to take such action, however, resolving 
that "to suffer no books to be printed without license from 
the governor will be attended with innumerable inconveniences 
and danger. " 6 "The last instance of an attempt to enforce 

Herring, Statutes, iii. 94 ; North Carolina Records, v. 63. Cf. commissions 
to Bernard of New Jersey, 1758, § 20 ; to Allen of New Hampshire, 1692, 
p. 60 ; to Dobbs of North Carolina, 1761, p. 529. 

1 Commission to Bernard, § 24; to Allen, p. 61 ; to Dobbs, p. 531. 

2 Maryland Archives, v. 31, 47, 92. 

8 Cooper, Statutes, iii. 214-217 ; Hening, Statutes, iii. 54, 404, 428 ; Bacon, 
Laws, 1684 ch. 2, 1688 ch. 6; Jones, Colonial Acts of Georgia, 57. 

4 See instructions to Dongan of New York, 1686, p. 375 ; to Copley of 
Maryland, 1691, p. 279; to Allen of New Hampshire, 1692, p. 68; to Corn- 
bury of New Jersey, 1702, § 98. 

5 Chalmers, Revolt, ii. 12, 19, 20. 

6 Hutchinson, History of Massachusetts, ii. 223. 



128 THE GOVERNOR'S EXECUTIVE POWERS. 

the licensing of the press in Massachusetts" occurred in 1723, 
and the prosecution then failed. The home government seems 
finally to have given up the obnoxious provision, omitting it 
altogether in the later instructions. 1 

The provincial governor represented the crown also in cer- 
tain ecclesiastical privileges and functions. The English 
king was the head and governor of the English church, though, 
as Blackstone says with some naivety the reasons on which 
this prerogative was founded were reasons rather of divinity 
than of law. By virtue of this position the king exercised a 
certain control over the ecclesiastical assemblies of the realm ; 
his assent was necessary to the validity of church canons ; and 
he had the right of nomination to bishoprics and some other 
preferments. He was, in short, the ultimate resort in all 
ecclesiastical causes. 2 

The subject of ecclesiastical jurisdiction in the colonies is 
by no means free from difficulties. According to the royal 
commission issued to the Bishop of London in 1728, the 
colonies had not been subject to any ecclesiastical juris- 
diction other than that of the king himself, as the supreme 
governor of the church of England. 3 On the other hand, the 
royal instructions to governors of New York in 1686 and 1690 
expressly refer to the ecclesiastical jurisdiction first of the 
Archbishop of Canterbury and then of the Bishop of London. 
At any rate, three important privileges were reserved to the 
governor by the commission and instructions : these were the 
rights of collation to benefices, granting marriage licenses, 
and probate of wills. 4 The royal commission to Bishop Gibson 
in 1728 gave him a general spiritual jurisdiction over the 
colonial churches, and authorized him to appoint commissaries 

1 See C. A. Duniway, The History of Restrictions upon Freedom of the 
Press in Massachusetts, ch. 3. (Unpublished thesis in the library of 
Harvard University). 

2 Blackstone, Commentaries, i. 278. 

8 New York Documents, v. 849. Cf. the letter of Bishop Sherlock in 
1759, Ibid., vii. 360. 

4 See commission to Dongan of New York, 1686, p. 379, and instruc- 
tions, §§ 31-39; instructions to Slough ter of New York, 1690, p. 688. 



ECCLESIASTICAL POWERS. 1 29 

in the colonies to act in his name. 1 The right of collation to 
benefices, however, remained as before in the governor's hands, 
together with the granting of marriage licenses and the probate 
of wills. 2 

Besides attending to these specific duties, the governor was 
expected to exercise a general oversight of the church in the 
province. He was required to see that "God Almighty be 
devoutly and duly served " throughout his government, and 
that the liturgy and other forms of the church of England were 
regularly observed. He was in general to support the Bishop 
of London in the exercise of his spiritual jurisdiction, and in 
particular to induct no ministers who were not duly certified 
by the bishop. When ministers proved unfit for their duties, the 
governor was to use the best means for securing their removal. 3 

In practice, this division of functions between the governor 
on the one side and the Bishop of London and his commis- 
saries on the other, did not always work as smoothly as might 
have been wished. A classic illustration is the case of Com- 
missary Blair of Virginia, who was engaged in constant alter- 
cations with Governors Andros and Nicholson of that province, 
the latter of whom in particular was charged with having 
seriously encroached upon the prerogative of the Bishop of 
London. 4 

The whole theory of the ecclesiastical authority of the gov- 
ernor and the Bishop of London was greatly disturbed by the 
action of the colonists themselves through their assemblies. 
In the Puritan colonies of New England, in Pennsylvania, 
Delaware, and New Jersey, the church of England had no 
legal recognition as an established church. 5 In New York a 

1 New York Documents, v. 849. 

2 See e.g. instructions to Morris of New Jersey, 1738, § 60; to Bernard 
of New Jersey, 1758, § 64. 

8 See instructions to Bernard of New Jersey, 1758, §§ 59-67; to Dun- 
more of Virginia, 1771, §§ 66-75. Cf. those to Dongan of New York, 1686, 

§§3i-39- 

4 See various documents in Perry, Papers relati?ig to the History of the 
Church in Virginia, 32 seq., 131 seq. 

6 For New Jersey especially, see Allinson, Acts of Assembly ; New 
Jersey Documents, iv. 155, 161 ; Burnaby, Travels, 102. 

9 



1 30 THE GOVERNOR'S EXECUTIVE POWERS. 

general act was passed for the establishment of six Protestant 
ministers; but, though it contained no distinct reference to 
the church of England, yet under its provisions Episcopal 
churches were actually supported by public taxation. 1 In the 
Carolinas the church of England was in theory the established 
church, and from time to time legal provisions were made 
for its support. This support, however, was very uncertain, 
especially in North Carolina, and there was often no security 
that the ministers and vestrymen would be bond fide adherents 
to the established order of the church of England. 2 

Where there was an establishment, the governor's preroga- 
tive suffered through various statutory provisions enacted in 
the interest of the vestries. Virginia acts of 1642 and 1662 
gave the parishes themselves the right of presentation, and 
called upon the governor to induct ministers so presented. 3 
The royal attorney-general ruled that this right of presentation 
lapsed after six months, and that the governor then had the 
right to collate. 4 As a matter of fact, however, ministers 
were commonly not inducted at all, but were engaged from 
year to year by the vestries, upon which they became almost 
wholly dependent. Indeed, the neglect of Governor Nicholson 
to secure proper presentation and induction of clergymen 
formed one of the most serious charges made against him by 
Commissary Blair. 5 In 1748 the assembly went a step farther, 
by passing an act which declared expressly that the vestries 
had the right of presentation for twelve months after a va- 
cancy had occurred, a provision which the Bishop of London 

1 Act of 1693 in Trott, Ecclesiastical Laws, 263. Cf. titles of acts of 
1703 and 1705, Ibid., 276; also Perry, History of the American Episcopal 
Church, i. ch. ix. y and illustrative notes, p. 171. 

2 See South Carolina act of 1706, in Trott, Ecclesiastical Laws, 5 ; Glen, 
Description of South Carolina, in Carroll, Historical Collections, ii. 222 ; 
Cooper, Statutes, ii. 366, iii. 174, iv. 266; North Carolina act of 171 5, in 
Trott, Ecclesiastical Laws, 83 ; North Carolina Records, vi. Preface, xxix- 
xxxiii, and 10, 714, 720; vii. 150. 

3 Hening, Statutes, ii. 46. 

4 Opinion of Attorney-General Northey, 1703, in Perry, Papers relating 
to the History of the Church in Virginia, 127. 

5 Ibid., 132. 



ECCLESIASTICAL POWERS LIMITED. 131 

interpreted as taking away from the crown the patronage of all 
livings and giving it to the vestries. 1 

The situation in the Carolinas was less satisfactory than 
that in Virginia. In South Carolina the church act of 1706 
provided that ministers should be chosen by a majority of the 
inhabitants of the several parishes "that are of the Religion 
of the Church of England " ; and the practice of election seems 
to have been continued down to the revolutionary era. 2 In 
North Carolina the act of 171 5 empowered the churchwardens 
and vestry to procure ministers ; and there were various subse- 
quent acts, which were disallowed by the crown because of 
encroachments upon the authority of the governor. Finally 
in 1765 an act was passed which was silent as to the right of 
presentation, leaving it, according to the interpretation of the 
Bishop of London, " in the crown to be exercised by the Gov- 
ernor by virtue of his Patent from the King." 3 

Nevertheless, the governor's ecclesiastical functions were 
by no means purely nominal. In Maryland the church estab- 
lishment act of 1702 expressly provided for the maintenance of 
ministers, who were to be " presented, inducted or appointed " 
by the governor; 4 and the right of presentation seems to have 
been actually exercised later by the proprietor or the gover- 
nor. 5 Furthermore, in North Carolina the governor and 
council had by statute the right to suspend ministers for im- 
proper conduct; and, in Virginia and Maryland at least, they 
acted as a species of ecclesiastical court. 6 It may fairly be 
said that, although the authority of the governor almost no- 
where in practice reached the standard set by the royal com- 
mission and instructions, it was yet possible for him in many 

1 Perry, Papers relating to the History of the Church of Virginia, 462; 
Hening, Statutes, vi. 90. 

2 Trott, Ecclesiastical Laws, 5; Cooper, Statutes, ii. 366, iii. 174, iv. 266. 

3 Trott, Ecclesiastical Laws, S3 ; North Carolina Records, vi. Preface, 
xxix-xxxiii and 10, 714, 720; vii. 150. 

4 Bacon, Laws, 1702, ch. 1. 

6 Sharpe's Correspondence, Maryland Archives, vi., ix., passim, espe- 
cially vi. 15, ix. 369 and index under "Livings." 

6 North Carolina Records, vii. 150; Hening, Statutes, iii. 289; Din- 
widdle Papers, ii. 695; Bacon, Laws, 1702, ch. 1. 



132 THE GOVERNOR'S EXECUTIVE POWERS. 

cases to exert a considerable influence for better or for worse 
upon the growth of the church within his province. 1 

In addition to all these specific powers enumerated in the 
commission and instructions, the governor was authorized to 
take provisional action in matters not covered by his commis- 
sion, though in such cases the consent of the council must 
always be had, and immediate notice must be given to the 
home government. He was, however, specifically forbidden to 
declare war, except against the Indians in emergencies. 2 This 
provisional authority seems to be quite inadequately defined ; 
but, according to a judicial interpretation, it applied only to 
cases in regard to which the instructions, as well as the com- 
mission, were silent, and could therefore not stand against any 
express directions of the instructions. 3 It was simply a pro- 
vision for unforeseen contingencies, guarded from possible 
abuse by the requirement of immediate notice to the home 
government. 

1 In Georgia also there was an establishment, and the governor had the 
right of collating to benefices (Stokes, Constitution of the British Colonies, 
120; J ones, History of Georgia,!. 524, act of 1758). Even in Massachu- 
setts, among the traditions of the Puritan commonwealth, there was a curi- 
ous illustration of one aspect of the king's ecclesiastical prerogative. In 
1725 the Congregational ministers of Massachusetts desired to hold a synod, 
and presented a petition to the governor, council, and assembly for their 
sanction. The House and the council were willing to grant the petition, 
but action was postponed. The case was then laid before the home 
government, which held that the application to the General Court, instead 
of to the governor alone, was an infringement of the royal prerogative, inas- 
much as the king's supremacy, being a branch of the prerogative, was ap- 
plicable in the colonies as well as at home. It was accordingly decided 
that it was not lawful for synods to meet in Massachusetts without the 
royal license (Chalmers, Opinions, 44-53, and Revolt, ii. 31). 

2 See instructions to Bernard of New Jersey, 1758, § 88; to Dudley of 
Massachusetts, 1702, p. 115; to Dobbs of North Carolina, 1754, § 129; to 
Dunmore of Virginia, 1771, § 87. 

8 Opinion of Chief-Justice Morris of New Jersey, in Chalmers, Opinions, 
203. 



CHAPTER VII. 

THE GOVERNOR'S RELATION TO THE JUDICIARY. 

In the study of the governor's powers, no systematic con- 
sideration has hitherto been given to his authority and duties 
in connection with the judicial and legislative departments of 
the provincial government. The question as to the relative 
importance of these different forces in the constitutional life 
of the province is of the highest consequence to a true concep- 
tion of the governor's actual position. Of the two powers, the 
judiciary and the assembly, the latter was by far the stronger, 
the more nearly independent, and therefore from the present 
point of view the more important. 

The governor in his relation to the judicial system of the 
province may first be considered. Here again the analogy of 
the royal prerogative proves useful. In the English constitu- 
tional tradition, the king was "the fountain of justice and 
general conservator of the peace of the kingdom " ; hence he 
had the right to erect courts, the processes of which ran in his 
name and were executed by his officers ; he was moreover the 
prosecutor in Criminal cases, because all such offences were 
committed "against the king's peace, or his crown and dig- 
nity." In course of time, however, practice had seriously 
modified this traditional theory. The king had originally 
possessed judicial power in himself; but gradually the actual 
administration of justice had passed into the hands of courts, 
the jurisdiction of which could not be changed without act of 
Parliament, and the independence of the judges had come to 
be secured by commission not as before during the king's 
pleasure, but during good behavior. 1 In practice, therefore, 
the English judiciary had gained a degree of independence of 
the crown quite inconsistent with the ancient tradition. 

1 Blackstone, Commentaries ', i. 266-268. 



134 THE GOVERNOR AND THE JUDICIARY. 

In the commissions of the royal governors is found an inter- 
esting survival of the old theory. The governor, for example, 
was empowered by his commission to erect courts of justice; 
as has been already seen, he also had the appointment of 
judicial officers; and, finally, he formed with the council the 
highest court of appeal in civil cases. At first these powers, 
like those of the king, were much more extensive; but the 
organization of inferior courts and other legislation of the 
assembly soon brought them within narrower limits. Since 
the question as to the appointment of judicial officers has 
already been considered under the general head of the appoint- 
ing power, it will be enough here simply to state the general 
rule, namely, that judges and justices of the peace were ap- 
pointed by the governor with the consent of the council, 1 The 
question as to the tenure of judicial offices deserves somewhat 
more particular attention, in that it affected the relation of 
the governor to the judiciary. 

It is obvious that a system of appointments during good 
behavior is far more favorable to the independence of the 
judiciary* than appointment during pleasure. The early in- 
structions were not clear on this point, directing merely that 
there should be no removals without just cause, which was 
to be made known to the home government, and that there 
should be no limitation of time in the commissions issued to 
judicial officers. These provisions were made, as the instruc- 
tions declared, in order to prevent arbitrary removals, though 
it is not clear how this result was to be produced unless offices 
were to be held during good behavior. 2 Whatever the inten- 
tion may have been, there seems to have been no uniform 
practice, though it is certain that in many of the colonies 
judges were appointed to serve during good behavior, and that 
in some colonies acts were passed to enforce this principle. 3 

1 See above, p. in. An exception must be made in the case of the pro- 
vincial chief-justice, who during the latter part of the colonial era was 
appointed by the crown. 

2 Instructions to Dongan of New York, 1686, § 26; to Hunter of New 
York, 1709, § 43; to Cornbury of New Jersey, 1702, § 41. 

3 See additional instruction to governors of Nova Scotia, New Hamp- 



THE TENURE OF JUDGES. 1 35 

The home government, however, stated distinctly its dis- 
approval of the practice. In 1751 the assembly of Jamaica 
passed an act providing that all judges of the supreme court 
should hold office during good behavior, and the act was referred 
to the law officers of the crown for their opinion. The latter 
held that the provision seriously affected the royal prerogative, 
and that under the circumstances it was not "advisable, either 
for the interest of the plantations themselves, or of Great 
Britain," that the colonial judges should hold office during 
good behavior. 1 In 1754 the instructions to Governor Dobbs 
of North Carolina contained distinctly the requirement that 
commissions should be granted during pleasure only. 2 

Nevertheless, judicial commissions continued to be given 
during good behavior, and acts were passed in Pennsylvania in 
1759 and in North Carolina in 1760 definitely prescribing that 
form of tenure. Early in the year 1761 the New York assembly 
also passed a bill for the same purpose, but it was defeated by 
the opposition of the governor. The Pennsylvania and North 
Carolina acts were disallowed by the crown. In passing upon 
the New York case, the Board of Trade insisted on the en- 
forcement of the royal instructions on this point. 3 The result 
was that an additional instruction was issued in December, 
1761, reciting the previous neglect of the royal orders, and 
charging the governors, on pain of removal from their posts, 
to assent to no acts regulating in any way the tenure of judi- 
cial officers, and to issue all commissions during pleasure only, 
"agreeable to what has been the Ancient Practice and Usage 
in our said Colonies and Plantations." 4 

This decision of the home government was still strongly 
resisted. The assemblies of New Jersey and New York 
declared their intention of granting no salaries to judges 

shire, New York, New Jersey, Virginia, the Carolinas, Georgia, etc., New 
Jersey Documents, ix. 329. Cf. Ibid., vii. 651, ix. 312, 346; North Caro- 
lina Records, vi. 255. 

1 Chalmers, Opinions, 433. 2 § 62. 

8 New Jersey Docu?ne?its, ix. 312 seq. ; Pennsylvania Colonial Records, 
viii. 543; North Carolina Records, vi. 587 seq.; New York Documents, vii. 
462, 470, 484. 

4 New Jersey Docu?nents, ix. 329. 



136 THE GOVERNOR AND THE JUDICIARY. 

unless the commissions were during good behavior. 1 Never- 
theless, the Board of Trade determined to enforce the rule; 
and accordingly in 1762 Governor Hardy of New Jersey was 
removed for disobedience in this respect, even though, before 
his actual removal, he had reversed his former action and had 
succeeded in getting the justices to accept commissions during 
pleasure. 2 By the year 1765 Lieutenant-Governor Colden was 
able to report that the rule was enforced in New York also. 3 
The popular feeling of opposition continued, however, and 
finally found expression in the well-known clause of the 
Declaration of Independence, which states, as one of the 
grievances against the king, the fact that " he has made judges 
dependent on his will alone for the tenure of their offices." 

The arguments by which the home government justified its 
action deserve some attention. In answer to the declaration 
of the people of New York, that such commissions in England 
were granted during good behavior and that sound policy 
required the same action in the colonies, the Board of Trade 
insisted that colonial appointments stood on an entirely dif- 
ferent footing, saying that in England the principle of tenure 
during good behavior had been adopted on account of the 
arbitrary action of the crown prior to the revolution of 1688, 
and apparently assuming that no such danger existed in the 
colonies. A special reason assigned for making appointments 
in the colonies during pleasure only was that there the mate- 
rial available for such offices was of poor quality; it was 
believed to be desirable that, when a man of superior talents 
was once found, the removal of inferior men who stood in the 
way of his appointment should be as easy as possible. 

Another reason assigned for the adoption of a different rule 
in the colonies was that by the general practice of the colonial 
assemblies salary grants were made temporary, whereas in 
England they were fixed by permanent appropriations. It 
was claimed that, without this unlimited right of removal, 
the crown or its representative would be forced to see the 

1 New Jersey Documents, ix. 346; New York Documents, vii. 489. 

2 New Jersey Documents, ix. 361, 364, 368. 
8 New York Documents, vii. 796-797. 



THE ERECTION OF COURTS. 137 

judiciary become completely subservient to the assembly; the 
Board, therefore, condemned the rule of tenure during good 
behavior as destructive of the interests of the subject and as 
"tending to lessen that just Dependance which the Colonies 
ought to have upon the Government of the Mother Country. " 1 
It may fairly be assumed that in this last clause we have the 
real secret of the royal opposition to the permanence of judicial 
appointments. 

In addition to this means of influencing the judiciary, the 
governor was assigned by his commission the right, with the 
advice and consent of the council, to erect courts of justice, 
though limited in the exercise of this power by his instruc- 
tions, which usually forbade him to erect new courts without a 
special order from the crown. He was further directed to see 
that in these courts justice was impartially administered. 2 
This power of erecting courts was the subject of a very vigor- 
ous controversy. The practice in the different colonies, and 
even in the same colony at different times, varied so much 
that it is impossible to make any accurate generalization ; but 
it is easy to find numerous instances in which courts were 
established by the action of the governor and council. Thus, 
chancery courts were in most cases established without any 
legislative process; 3 and in New Jersey the early judicial 
system was based mainly upon ordinances of the governor and 
council. 4 There are instances, too, in which, in the absence 
of any legislation, the governor was expressly directed to pro- 

1 Representation of the Board of Trade, New Jersey Documents, ix. 
312 seq. 

2 Commission to Bernard of New Jersey, 1758, § 15; to Allen of New 
Hampshire, 1692, p. 59; to Dobbs of North Carolina, 1761, p. 528. In- 
structions to Bernard, §§ 33, 34; to Allen, p. 66; to Dunmore of Virginia, 

*77h §§38,39- 

8 New York Documents, iv. 914, 929; Pennsytvania Records, iii. 105. 
See also the opinion of Attorney-General Northey, in 1704, to the effect that 
the queen could by her prerogative erect a court of equity in Massachusetts, 
and that the General Court could not do so according to the terms of the 
charter : Chalmers, Opinio7is, 195. 

4 Field, Provincial Courts of New Jersey, App. C, D (ordinances estab- 
lishing courts). Later ordinances run in the king's name {Ibid., App. E, F). 



138 THE GOVERNOR AND THE JUDICIARY. 

vide for the necessary courts. This was the case in North 
Carolina, where in 1754 the instructions to Governor Dobbs, 
after declaring the repeal of the judiciary act of 1746, provided 
for deficiencies by directing the governor with his council to 
establish courts of justice. In Pennsylvania similar action 
was taken in 1707. 1 

On the other hand, acts of assembly were constantly passed, 
erecting courts and defining their jurisdictions ; in fact, it may 
be said that, as a rule, courts were established and organized 
by such acts, and not by ordinances of the governor and 
council. 2 Yet this circumstance did not necessarily imply a 
denial of the legality of the latter method. For example, in 
1705 Virginia passed an act establishing the General Court of 
that province, and declaring also that the courts therein named 
should be the only courts of record in the province; in order 
to avoid misunderstanding, however, an explanatory act ex- 
pressly recognized the right of the crown to erect courts. 3 

Nevertheless, it must be said that there was also very general 
opposition to the exercise of this power by the governor, a very 
widespread feeling that such action was illegal. In Pennsyl- 
vania, where ordinances of this sort were several times passed, 
the assembly denied the governor's right to take such action. 4 
In South Carolina also, the court of exchequer erected by Gov- 
ernor Nicholson was regarded as exercising an illegal juris- 
diction; 5 and the New York assembly, in 1727, condemned 
the action of the governor in erecting a court of chancery with- 
out the consent of the assembly. 6 In short, so good an author- 

1 Instructions to Dobbs of North Carolina, 1754, § 41 ; Charter and 
Laws of Pennsylvania, 319. 

2 North Carolina Records, iv. 337; Martin, IredelVs Public Acts, i. 40, 
74, 112, 117; Cooper, Statutes of South Carolina, iii. 179, vii. 163 seq.\ 
New Hampshire Provincial Papers, iii. 183, 218; Acts and Laws of New 
Hampshire (1771), ch. 4; Charter and Laws of Pennsylvania,-^^ seq.\ 
Allinson, New Jersey Acts of Assembly, chs. 172, 193 ; Hening, Statutes of 
Virginia, iii. 95-96, 287, 489. 

3 Hening, Statutes, iii. 489. 

4 Votes of Pennsylvania, i. pt. ii. 158. 

5 Chalmers, Revolt, ii. 166. 

6 Smith, History of New York, 229-230. 



GOVERNOR'S AUTHORITY DISPUTED. 1 39 

ity as Thomas Pownall declares that the right of the governor 
to erect courts was " universally disputed. " ' The home gov- 
ernment, too, seems to have recognized the propriety of action 
by the assembly; for the instructions to Governor Lovelace 
of New Jersey, in 1708, contained a clause directing him to 
recommend to the assembly the passage of an act creating a 
court for the trial of small causes. 2 It appears therefore that, 
although the governor was authorized by his commission to 
erect courts with the consent of the council, he was by his 
instructions restricted in the exercise of this power; that 
courts were regularly established and organized by acts of 
assembly ; and that the right of the governor to erect courts by 
ordinance was very generally disputed. 

A third method by which the governor made his influence 
felt upon the provincial judiciary was a necessary consequence 
of his position as chief executive. As such it was his duty 
to see that the laws were duly enforced; with him, or with 
agents appointed by him, lay the enforcement of judicial 
decisions ; and with him also rested in part the duty of pros- 
ecution. The attorney-general of the province, though not 
always appointed by the governor, was subject to his orders; 
and prosecutions might be ordered by the governor and council, 
or, when once begun, might be suspended by their order. 3 It 
is clear that in these various ways the governor had an impor- 
tant influence for good or evil upon the administration of 
justice. 

Hitherto attention has been given only to the action of the 
governor upon the judiciary power from without, through his 
influence in the constitution of the courts and in the enforce- 
ment of judicial decisions, — powers which, with the excep- 
tion of the right to erect courts, are normal functions of the 
executive. The governor was more than an executive officer, 

1 Ad?ninistration of the Colonies, 75 seq. 

2 Instructions, § 53, New Jersey Documents, iii. 322. Cf. instructions to 
Bernard, 1758, § 33. 

8 See New Jersey Documents, ix. 482, xiv. 486; Allinson, Acts of 
Assembly, ch. 23 ; Bacon, Laws of Maryland, 171 5 ch. 48, 1722 ch. 5. 



140 THE GOVERNOR AND THE JUDICIARY. 

however: he was himself a part of the judicial system. In 
the early days of the colonies there was, as has been seen, 
very little scientific definition of powers; the administration 
of justice was then in some cases almost entirely in the hands 
of the governor and council. As time went on, the organiza- 
tion of courts, by acts of assembly or otherwise, naturally 
brought the governor's activity within much narrower limits; 
but in nearly all the colonies something of his old judicial 
power survived. 

The governor's criminal jurisdiction seems for the most 
part to have passed away; but in Virginia the governor and 
council, under the name of the "General Court," continued 
to be the highest court in all cases, criminal as well as 
civil. 1 

The most important judicial function of the governor and 
council was the hearing of appeals in civil cases in which the 
value in question exceeded a certain fixed sum. 2 This amount 
varied in different provinces : in the instructions to Lord 
Cornbury, in 1702, the right of appeal to the governor and 
council was limited to cases involving more than one hundred 
pounds sterling; 3 a Maryland statute of 171 3 directed that 
appeals should lie from the provincial court to the governor 
and council only in cases involving more than fifty pounds ; 4 
an additional instruction of 1753 raised the minimum value 
for which a suit might be carried to the governor and council 
to three hundred pounds. 5 In order to guard against abuses, a 
further right of appeal to the Privy Council was instituted by 
which appeals were allowed in cases involving from two hundred 
to five hundred pounds. Appeal to the home government was 



1 Hening, Statutes, ii. 532 (charter of 1676), iii. 287, 489; Hartwell, 
Blair, and Chilton, Present State of Virginia, 20. 

2 See instructions to Bernard of New Jersey, 1758, §§ 39, 40; to Allen 
of New Hampshire, 1692, p. 68; to Dobbs of North Carolina, 1761,- §§ 60, 
61 ; to Dunmore of Virginia, 1771, §§ 41, 42. Exception must be made of 
the colonies of Massachusetts, Pennsylvania, and Delaware. Cf. Laws of 
Delaware (1797), i. 374; Proud, History of Pennsylvania, ii. 286. 

8 § 85. 4 Bacon, Laws, 1713, ch. 4. 

5 New Jersey Documents, viii. (1) 188. 



THE GOVERNORS JUDICIAL POWERS. 141 

thus ordinarily possible only when very considerable sums of 
money were involved. 1 There were also several other condi- 
tions tending to discourage the reference of suits to the crown, 
one of which was the requirement that the appellant should 
give notice of appeal within fourteen days and furnish bonds 
to answer the charges in case the sentence should be con- 
firmed; and still another lay in the fact that the process of 
appeal to a distant tribunal necessarily involved great incon- 
venience and expense. The result was that the governor and 
council were inadequately checked in the exercise of their 
judicial functions. 2 

The governor was furthermore the keeper of the province 
seal, and as such was, in theory at least, chancellor with juris- 
diction in equity cases, for the trial of which courts were set 
up in nearly all the colonies. In some provinces the governor 
himself constituted the chancery court; in others the governor 
and council were judges, each with an equal vote in the deci- 
sion of the court. 3 That this equity jurisdiction of the governor 
was generally distrusted is plainly seen in the popular view of 
the matter as given by Douglass in his " Summary " : " It is 
said that a Governor and such of the Council as he thinks 
proper to consult with, dispense with such Provincial Laws as 
are troublesome or stand in their Way in Procedures of their 

1 Instructions to Bernard, §§ 39, 40 ; to Cornbury, §§ 85, 86. It should 
be said, however, that in answer to petitions in special cases the crown 
might and did allow appeals involving smaller amounts. See opinion of 
Attorney-General Northey, in Chalmers, Opinions, 490. 

2 Cf. Hartwell, Blair, and Chilton, Present State of Virginia, 26, 46. 

8 New Hampshire Provincial Papers, iii. 186; Massachusetts Province 
Laws (i.), 1692-3 ch. 33, § 14, 1693-4 ch. 12; Pownall, Ad?ninistration of 
the Colonies, 80; Pennsylvania Records, iii. 105; Hartwell, Blair, and 
Chilton, Present State of Virginia, 20; Hening, Statutes of Virginia, iii. 
291; Bacon, Laws of Maryland, 1721, ch. 14; Cooper, Statutes of South 
Carolina, vii. 163, 191 ; North Carolina Records, iii. 123, 150; Field, Pro- 
vincial Courts of New Jersey, 11 3-1 14; New Jersey Documents, xiii. 553, 
xiv. 521; ordinance of 1753, in Allinson, Acts of Assembly, Appendix; 
History of the British Dominions in North America, ii. 120; Douglass, 
Summary of the First Planting of the British Settlements in North 
A?nerica, ii. 256-257. The governor's chancery court in Massachusetts 
seems to have been abandoned (cf. Douglass, as above). 



142 THE GOVERNOR AND THE JUDICIARY. 

Court of Equity, so-called." 1 This popular distrust of the 
chancery court without doubt impaired its efficiency in no 
small degree. In Pennsylvania it met with serious opposition 
from the assembly, which soon refused to recognize its author- 
ity. 2 In New York the governor's equity jurisdiction, though 
denounced by the assembly, was able to maintain a somewhat 
precarious existence; but it was held in contempt and was 
generally avoided, as indeed, according to Governor Pownall, 
seems to have been the case in other colonies in which such 
courts had been established. 3 

Other judicial powers of the governor may be considered 
very briefly. As a part of his ecclesiastical jurisdiction, he 
had the probate of wills and the issue of marriage licenses; 4 
either alone or with the council he usually acted as a court of 
probate; 5 in Massachusetts and New Hampshire at least the 
governor and council constituted a court for the decision of 
questions of marriage and divorce. 6 The governor was also 
named in the royal commission for the trial of piracy cases, 
which Aisually included the governors of a few adjacent colonies, 
with some other officers of the colonial service. 7 

Thus the governor, besides having an indirect influence upon 
the administration of justice through his control over the 

1 II- 33, 49- 

2 Pennsylvania Records, iii. 617, iv. 38-46. Note the absence of refer- 
ence to the chancery court in Proud's account of the courts, History of 
Pennsylvania, ii. 86. 

8 Smith, History of New York, 230; Pownall, Administration of the 
Colonies, 81. 

4 See instructions to Bernard of New Jersey, 1758, § 64; to Dobbs of 
North Carolina, 1754, § 105 ; to Dunmore of Virginia, 1771, § 72. 

5 Hening, Statutes of Virginia, iv. 16; Bacon, Laws of Maryland, 1715, 
ch. 39, § 27; South Carolina Historical Society, Collections, ii. 286; Massa- 
chusetts charter of 1691, in Poore, Charters and Constitutions, i. 942; 
Massachusetts Province Laws (i.), 1692-3, chs. 14, 46; New Hampshire 
Provincial Papers, ii. 500; Laws of Delaware (1797), i. 92, and cf. 427. 

6 Massachusetts Province Laws (i.), 1692-3, ch. 25; New Hampshire 
Provincial Papers, ii. 249, iii. 277. 

7 Stokes, Constitution of the British Colonies, 231-232 ; instructions to 
Bernard of New Jersey, 1758, § 80, and to Dunmore of Virginia, 1 771, § 64 ; 
New Jersey Documents, ix. 282. 



DEPENDENCE OF THE JUDICIARY. 1 43 

organization of the courts and the machinery of enforcement, 
was himself a part of the judicial system, in one important 
class of cases forming with the council the highest court of 
appeal within the province. It is clear that under such a 
system the independence of the judiciary must have been 
seriously impaired ; indeed, so conservative a writer as Hutch- 
inson speaks of the judges during one administration as 
distinctly dependent upon the governor, 1 referring speci- 
fically in this case to Belcher's frequent removals of judi- 
cial officers. 

Furthermore, numerous cases might be cited of gross abuse 
by the governor of his influence upon the administration of 
justice. A classic illustration of such abuse is seen in the 
judicial murders of Berkeley's time; and another striking 
example of the same improper influence appears in the case of 
Nicholas Bayard of New York, who was tried and convicted of 
high treason by a packed court and jury, and sentenced to be 
hung and quartered, merely because he had made certain inju- 
dicious criticisms of the provincial administration. 2 Again, 
there is a case in which a governor grossly abused his power 
over the Supreme Court in order to gain his personal ends. 
Governor Cosby of New York had ordered a suit before the 
Supreme Court in a case involving the payment of his salary. 
The court ruled that this was a case in equity of which it 
could not take cognizance; whereupon the governor sent an 
abusive message to Chief -Justice Morris, declaring him unfit 
for his position, and shortly appointed in his place one of the 
judges who had given an opinion favorable to himself. Cosby 
declared that the removal of Morris was necessary in order to 
discourage the advocates of "Boston principles," which was 
a general term for opposition tendencies. In the famous 
Zenger case, Cosby used all his influence to bring about the 
conviction for libel of the man who published Morris's criti- 

1 History of Massachusetts, ii. 336-337, notes. 

a Howell, State Trials, xiv. 471 ; New York Documents, iv. 945-974 
passim, 1023. 



144 THE GOVERNOR AND THE JUDICIARY. 

cism of the governor's action; and he was defeated only by the 
bold appeal of Zenger's counsel to the jury. 1 

Clearly, a judiciary so constituted and so controlled could 
hardly have exercised any effective check upon the governor; 
and furthermore the process of appeal to the home government 
was so difficult as to be worth little as a restraint upon his 
action. 

1 See New Jersey Documents, v. 327, 340, 343, 356; also report of the 
case in Howell, State Trials, xvii. 67s j New York Documents, vi. 4. 



CHAPTER VIII. 

THE GOVERNOR'S POWER OVER THE ASSEMBLY. 

Attention may now be turned to the governor's relation to a 
body which had a far more important influence in the constitu- 
tional history of the colonies, namely, the General Assembly, 
or General Court, as it was variously called. 

A word must first be said as to the constitution of the assem- 
bly. In all the royal and proprietary governments, except 
Pennsylvania, it consisted of two houses, — the council ap- 
pointed on the governor's recommendation, and a lower repre- * 
sentative house. In Pennsylvania, as has already been seen, 
the councillors were excluded from direct participation in 
legislation, though the governor was required to take their 
advice. This requirement was very unpopular with the 
assembly, which naturally felt that in this way the council 
became practically an upper house. 

The governor, by his commission, had other important 
powers in the constitution of the assembly. In the first 
place, the calling of the assembly was left in his hands, ^ 
subject, however, to the advice and consent of the council : 
no assembly could even come into existence without his 
action. 1 This power was limited in two ways, however, first 
by specific requirements of charter or statute, and secondly 
by the practical necessity of calling assemblies in order to 
get supplies. In two colonies, Pennsylvania [Delaware] and 
Massachusetts, the charters, though giving to the governor the 
right of summons, required annual elections and sessions at 

1 Commission to Bernard of New Jerse)% 1758, § 7; to Allen of New 
Hampshire, 1692, p. 58; to Dobbs of North Carolina, 1761, p. 526. 

10 



146 THE GOVERNOR'S POWER OVER THE ASSEMBLY. 

fixed dates. 1 In a few other colonies there were triennial 
or septennial acts, which required the calling of a new as- 
sembly at the end of a fixed period of time, but still left the 
governor comparatively free. 2 By far the more important 
check, however, from a practical point of view, was to be 
found in the financial necessities of the provincial govern- 
ments. An assembly which held the purse-strings could not 
be dispensed with; and the result was that annual sessions 
became the rule in nearly all the colonies, though there were 
some exceptions. The Virginia statutes, for example, show 
several considerable gaps: from 1686 to 1691 there was no 
legislation and apparently no legislature, also from 171 5 to 
171 8, and finally from 1748 to 1752, periods of three and four 
years. 3 It will be remembered that in Virginia official salaries 
were paid out of a permanent fund. 

The right of summons has another aspect in its bearing 
upon the election of members of the lower house, or House of 
Representatives. Elections to this body were held regularly 
in accordance with writs issued by the governor to the sheriffs 
directing the choice of a certain number of representatives 
from each district. 4 The question then arises as to whether 
the governor had any discretion in the issue of the writ, so 
far, for example, as to determine the number of members who 
should be returned from a particular district, or to grant the 
right of representation to a new district. To this it may be 
said that in general the writ of summons was purely formal, 
though sometimes the question was raised in a practical form. 
An example is seen in a petition of the Maryland House, in 
1676, protesting against the proprietor's abuse of the right of 
summons; the petition admitted the right of the proprietor 
(then governor) to determine the number to be elected, but 

1 Pennsylvania " charter of privileges," in Poore, Charters and Constitu- 
tions, ii. 1536; Massachusetts charter of 1691, Ibid., i. 942. 

2 See below, pp. 155 seq. 

8 See Hening, Statutes, iii., iv., vi. 

4 See e.g. Ibid., iii. 236; North Carolina Records, iv. 534; Cooper, 
Statutes of South Carolina, iii. 50-55. In South Carolina the church- 
wardens formed a part of this machinery of election. 



THE RIGHT OF SUMMONS. 147 

there was dissatisfaction because, out of four persons elected, 
only two had been called out by writ to serve. The governor 
agreed at that time to summon four. 1 In 1681 and 1682 the 
lower house attempted to regulate the number of representa- 
tives by statute; but the proprietor resisted, and finally 
himself issued an ordinance regulating the representation. 
Thereupon the House demanded something more permanent, 
asking the passage of an act for that purpose; but the gov- 
ernor refused to surrender his prerogative. The appointment 
of delegates and the form of the writ were, however, finally 
settled by statute. 2 

A similar question arose in North Carolina, where com- 
plaint was made that Governor Burrington and his council ar- 
ranged electoral districts without the consent of the assembly 
in order to control elections. The governor insisted that he 
had precedents; but this claim the assembly denied, and finally 
went so far as to exclude members from new precincts not fixed 
by act of assembly. For a time the point was gained, and the 
representation was fixed by acts of assembly. 3 Finally, how- 
ever, the home government interfered : the acts of assembly 
creating electoral districts were disallowed, and the principle 
was laid down that the right to elect members ought to be con- 
ferred only by the crown, a principle which was carried out in 
the form of proclamations issued in the king's name by the 
governor. 4 In New Hampshire also the same point was the 
occasion of a contest, in which after long deadlocks the assembly 
was finally beaten. 5 A different position was taken in New 

1 Maryland Archives, ii. 507. 

2 Ibid., vii. 1 18-125, 236, 333, 355, 452; Bacon, Laws, 1716, ch. 11. 

& North Carolina Records, iii. 380, 383, 445, $76, 583, 611 ; Martin, 
IredelVs Public Acts, i. 67. 

4 Chalmers, Opinions, 271-292; North Carolina Records, v. 81-92, 341, 
406; instructions to Dobbs, 1754, §§ 13-16. Cf. North Carolina Records, 
v. 767, and Iredell, Laws of North Carolina, 109. 

5 New Hampshire Provincial Papers, v. 260-265, 295, vi. 70-82, 125, 
128-129, 138, 161, 840, 883. The additional instruction to Governor Ben- 
ning Wentworth, in 1748, took the ground that the right to send repre- 
sentatives was founded in the commission and instructions, and that it was 
the prerogative of the crown to extend the privilege as it chose {Ibid., vi. 82). 



143 THE GOVERNOR'S POWER OVER THE ASSEMBLY, 

Jersey, where the original apportionment of representatives 
was made in the governor's instructions. New assignments, 
however, were here fixed by acts of assembly, although these 
acts were passed with a clause suspending execution till the 
crown should give its assent. 1 In the other colonies the crown 
apparently made at first no objection to apportionment by acts 
of assembly; in fact, this method formed the general rule until 
the latter part of the colonial period, when the governors were 
specifically forbidden to assent to any act increasing the num- 
ber of members of the assembly. 2 

Owing to the fact that elections were held in accordance 
with the governor's writs addressed to the sheriffs, who were 
his appointees, the governor had some opportunity to influence 
the election of members. Indeed, corruption of this kind wa,s 
distinctly charged against several provincial governors; and 
in a report on the condition of the colonies, made to the Board 
of Trade in 171 5, the governors generally were accused of in- 
fluencing elections unlawfully. 3 It must be said, however, 

1 Allinson, Acts of Assembly, chs. 44, 125, 160, 207, 474 ; instructions to 
Cornbury, 1702, § 15. 

2 Bacon, Laws of Maryland, 1716, ch. 11 ; Hening, Statutes of Virgifiia, 
iii. 414; Cooper, Statutes of South Carolina, iv. 37; Massachusetts Prov- 
ince Laws, passim. By the Massachusetts charter the General Court had 
the right to apportion the representation of the towns ; by ch. 38 of the acts 
of 1692-3 each town of forty qualified voters was required to send one 
representative ; towns having one hundred and twenty qualified voters 
might send two members. For acts creating towns with full privileges, 
see Massachusetts Province Laws (ii.), 1724-5, ch. 13; 1728-9, ch. 20; 
1735-6, ch. 10. For later rules on this point, see instructions to Dunmore 
of Virginia, 1771, § 14 ; to Dobbs of North Carolina, § 16; circular instruc- 
tion, 1767, in New Jersey Documents, ix. 637. 

3 North Carolina Records, ii. 159. For charges brought against Moore 
of South Carolina in 1701, see Oldmixon, British E?npire in America, i. 
475; Party-Tyranny in Carolina, 13; Case of the Dissenters, 18. See the 
suggestions of Chalmers in the case of Governor Bellomont of New' York, 
Chalmers, Revolt, i. 289-290. Bellomont himself says that he removed the 
sheriffs appointed by his predecessor and chose new men " well affected to 
the King," a phrase which seems sometimes to be used as if synonymous 
with " well affected to the governor." Similar charges were brought against 
Lord Cornbury in New Jersey; and the feeling in this province is further 
illustrated by the passage of an act, in 1725, designed to prevent improper 



ORGANIZATION OF THE LOWER HOUSE. 149 

that this charge is supported by comparatively little direct 
evidence during the latter part of the colonial period. 

After the assembly had once met, the governor of the colony 
claimed some control over the organization of the House. The 
royal commission contained the apparently innocent provision 
that the regular 6aths of allegiance and fidelity should be 
administered by the governor to the members of the assembly, 
and that no one should be permitted to sit until he had taken 
the oath. 1 This practice seems generally to have been a mere 
formality; but in two colonies the governor attempted to make 
such use of the function as to impair the ancient parliamentary 
privilege of the right of the assembly to judge of the election 
of its members. For example, Governor Belcher of New 
Hampshire claimed that he had the right to judge what 
members were duly elected; the House took a decided stand 
against this assumption, and refused to proceed to busi- 
ness till the members in question were qualified; whereupon 
the governor yielded and administered the oath. 2 Similarly, 
Governor Cornbury of New Jersey refused, at the suggestion 
of his council, to swear certain members whom the council 
declared not qualified; and though he succeeded in having his 
way for the time being, yet he was censured by the Board of 
Trade, which wrote that his lordship would "do well to leave 
the Determination about Elections of Representatives to that 
House, and not to intermeddle therein." 3 It is clear, then, 
that the governor's interpretation was not sanctioned by the 
home government. 

In nearly all the colonies it was customary, in accordance 
with the usage of the mother country, to present the newly- 
elected speaker to the governor for the latter's approval. In 
England this presentation had become a mere formality, and 

action at elections on the part of sheriffs and others. See New York 
Documents, iv. 506 ; New Jersey Documents, iii. 87 ; Allinson, Acts of 
Assembly, ch. 116. 

1 Commission to Bernard of New Jersey, 1758, § 8; to Allen of New 
Hampshire, 1692, p. 58 ; to Dobbs of North Carolina, 1761, p. 526. 

2 New Hampshire Provincial Papers, iv. 680-684. 
8 New Jersey Documents, iii. 87 seq., 100. 



ISO THE GOVERNOR'S POWER OVER THE ASSEMBLY. 

it appears to have been so in most of the colonies ; the gover- 
nor seems usually to have given his approval as a matter of 
course, even when, as in one instance in North Carolina, the 
choice must have been extremely distasteful to him. 1 There 
were, however, a few cases in which this usually formal pro- 
cedure became of practical importance. In 1707, Governor 
Cornbury of New Jersey strongly objected to the assembly's 
choice of Samuel Jennings, a Quaker, as speaker, and was at 
first inclined to reject the appointment; but in order to avoid 
trouble, he finally decided to approve it, though he seems to 
have had no doubt of his legal right to negative the choice of 
the assembly. 2 

In Massachusetts the presentation of the speaker seems at 
first, as in most of the other colonies, to have been regarded 
as a mere formality. 3 When, however, in 1705, the House 
chose as speaker one Oakes, to whom Governor Dudley strongly 
objected, the latter refused to give his approval; whereupon 
the House ignored the governor's action and proceeded to 
business. Dudley finally yielded, but with a formal protest 
that he did so with a saving of his prerogative and owing 
to the pressure of the war. 4 The claim was revived under 
more favorable circumstances in 1720, when Governor Shute 
negatived the speaker chosen by the House, supporting his 
action by the opinion of the home government given at the 
time when the question was referred to it by Dudley. Shute 
advised the House to choose a new speaker, and to appeal to 
the home government for an explanation of that part of the 
charter which referred to the governor's negative upon all acts 
of the General Court. The House, however, held its ground, 

1 Maryland Archives, i. 397, 460; Votes and Proceedings of the Lower 
House, Dec. 12, 1754, and Sept. 28, 1757; Votes of Pennsylvania, \. pt. i. 
44, 102, 108; Stokes, Constitution of the British Colonies, 127. Note espe- 
cially the North Carolina case, North Carolina Records, iii. 540. Cf. Ibid. 
360, 431. 

2 New Jersey Documents, iii. 224. 

8 See e.g. Massachusetts Province Laws, i. 90, note; Hutchinson, His- 
tory of Massachusetts, ii. 17. 

4 Hutchinson, History of Massachusetts, ii. 17, 137; SewalVs Diary, ii. 
130, 132. 



THE RIGHT OF PROROGATION. 151 

refusing to choose a new speaker, and was dissolved. In 1721 
the assembly chose another speaker. The governor declared 
his approval, which the House then pronounced unnecessary. 1 
The dispute was finally settled by the so-called "explanatory" 
charter, which decided the question against the assembly. 2 
In New Hampshire also the same point was successfully 
asserted by the governor, and his veto was sometimes used 
with effect. 3 

After the House had thus been summoned, had met, and 
had organized itself, the governor still had great power over 
it, inasmuch as the continuance of its sessions depended en- 
tirely upon his will, at least so far as the terms of the royal 
commission could confer that power. The governor was au- 
thorized by his commission to adjourn, prorogue, and dissolve *S 
all general assemblies as he might think necessary; and by a 
later instruction he was directed not to allow the assembly to 
adjourn itself except from day to day. To this general rule 
two exceptions must be noted. In Pennsylvania the char- 
ter provided for annual elections, and directed also that the 
assembly should sit on its own adjournments; but these pro- 
visions did not at first prevent the governor from exercising 

1 Hutchinson, History of Massachusetts, ii. 211, 214-215, 226, 241. 

2 Poore, Charters and Constitutions, i. 954. 

3 New Hampshire Provincial Papers, iv. 485-488. The veto was first 
used in 1728, when the House submitted, but declared the wisdom of their 
first choice. Governor Benning Wentworth made effective use of this 
power in his disputes with the assembly concerning the governor's right of 
summons. In 1749 began a deadlock, which lasted till 1752, when the 
assembly was dissolved ; whereupon the new assembly chose another 
speaker, who was acceptable to the governor {Ibid., vi. 70-82, 125, 129-130). 
Frequently the clerk of the assembly was appointed by the governor 
(Hening, Statutes of Virginia, iii. 41 ; Hartwell, Blair, and Chilton, Present 
State of Virginia, 28; North Carolina Records, iii. 354, 576; Maryland 
Archives, i. 261, ii. 63, 439, v. 505-506, vii. 3, 523; Stokes, Constitution 
of the British Colonies, 127; New fersey Docume7its, iii. 226-227). In 
South Carolina the assembly's choice of a clerk was regularly at least sub- 
ject to the governor's approval. In 1732 the governor was ordered to com- 
mission a particular person as clerk. (South Carolina Historical Society, 
Collections, ii. 119, 134; Chalmers, Revolt, ii. 170). 



152 THE GOVERNOR'S POWER OVER THE ASSEMBLY. 

his powers of prorogation and dissolution. In Massachusetts 
there was a similar charter provision for annual elections and 
annual meetings ; but the power of prorogation and dissolution 
remained within these limits. 1 

In regard to the question of prorogation, it was held by the 
crown law officers that the governor might prorogue to any 
time or to any place, that he might even prorogue an assembly 
when not in session. 2 How was this power actually exercised? 
In the first place, assemblies that proved refractory were often 
prorogued, in the hope that a short interval of consideration 
might bring them to a more favorable mood. 3 Furthermore, 
it was charged by the assemblies, and probably with some 
truth, that the governor also used this power merely as a 
means of harassing the assembly in the hope of forcing it 
to accede to his demands. 4 This view seems to be taken 
for granted by Douglass in his "Summary," where he says 
that the governor "calls, dissolves, prorogues, adjourns, re- 
moves, and other ways harasses the General Assembly at 
Pleasure." 5 

There can indeed be no doubt that assemblies were some- 
times prorogued in order to prevent them from taking action 
not in accordance with the governor's wishes. A serious 
charge of this sort was brought against Governor Belcher when 
he was governor of both Massachusetts and New Hampshire. 
The crown, it seems, had recommended that the assembly of 
each province appoint commissioners to present its boundary 

1 See the charters of Massachusetts and Pennsylvania respectively, in 
Poore, Charters and Constitutions, i. 942, ii. 1536. Cf. Votes of Pennsyl- 
vania, i. Appendix, xv, and i. pt. ii. 16; commission to Bernard of New 
Jersey, 1758, § 12, and to Dobbs of North Carolina, 1761, p. 527; instruc- 
tions to Dunmore of Virginia, 1771 , § 15. 

2 Chalmers, Opinions, 239-243, 249. These rights were disputed in Mas- 
sachusetts and North Carolina (Hutchinson, History of Massachusetts, ii. 241, 
245 ; Massachusetts Province Laws, i. 363, ii. 234; North Carolina Records, 
ii. 576). 

3 See e.g. North Carolina Records, vi. 243-244, 828; New Hampshire 
Provincial Papers, i. 545. 

4 New York Documents, vi. 626; New fersey Documents, xiv. 177. 

5 Summary of the First Planting of the British Settleinents in North 
America, i. 474. 



THE RIGHT OF DISSOLUTION. 1 53 

claims ; and it was charged against Governor Belcher, who 
was a Massachusetts man by birth and whose sympathies were 
strongly on the side of that province, that he prorogued the 
assembly till some days after the date fixed for the meeting of 
the arbitrators ; it was also charged that he afterwards pre- 
vented the assembly from meeting in time to appeal from the 
decision as reported by these arbitrators. For this conduct 
he was severely censured by the home government. 1 Other 
instances occurred in 1765 and 1768, when the governors of 
New York and Georgia used their right of prorogation in a 
similar way to prevent action by their assemblies on the 
Stamp Act Congress and the Massachusetts circular letter. 2 
It must be remembered, too, that this control over adjourn- 
ments worked both ways: if the governor might adjourn or 
prorogue the assembly against its will, he might also keep it 
in session equally against its will. 8 

The question in regard to dissolution now occurs. Proroga- 
tion merely ended a particular session; dissolution terminated 
the life of an assembly : it is therefore not difficult to see that 
the governor, with this power of dissolution in his hands, had 
a very effective hold upon the assembly. This right belonged 
to the governor in every colony except Pennsylvania where 
it was disputed and seems finally to have been abandoned. 4 
Dissolution was a common method of getting rid of an obsti- 
nate assembly, in the hope of securing one which would prove 
more tractable. For example, Governor Shute dissolved the 
Massachusetts General Court in 1720, with the announcement 
that he would serve out a new summons speedily, when he 

1 New Hampshire Provincial Papers, iv. 864, v. 921-923; report of 
Lords of Council, in Belknap, History of New Hampshire, ii. 168. Cf. 
Hutchinson, History of Massachttsetts, ii. 349-350. 

2 Almon, Prior Documents, 36, 217. 

3 See e. g. Hutchinson, History of Massachusetts, ii. 306-309, notes. 

4 " We sit upon our own adjournments, when we please, and as long as 
we think necessary ; and we are not to be sent a packing, in the middle of 
a debate, and disabled from representing our just grievances . . . which 
has often been the fate of Assemblies in other places " : speech of Andrew 
Hamilton, in Proud, History of Pennsylvania, ii. 217. Cf. Votes of Penn- 
sylvania, i. pt. ii. 16. 



154 THE GOVERNORS POWER OVER THE ASSEMBLY. 

hoped that representatives would be chosen "that should fear 
God, and honour the King " ; and Governor Johnston of North 
Carolina declared that the assembly had failed to " mend " and 
that he had therefore dissolved it. 1 The assembly was some- 
times dissolved because the governor feared action inconsistent 
with his own interests. Thus, Governor Reynolds of Georgia 
was charged with having dissolved an assembly, with the 
taxes of the coming year unprovided for, in order to prevent 
an inconvenient inquiry into the conduct of one of his favor- 
ites. 2 Of course the dread of dissolution must have had some 
influence upon the action of members who were by no means 
sure of being returned at a new election; but on the whole 
it may be questioned whether the dissolution of a refractory 
assembly brought the governor any very great advantage in the 
long run, especially during the latter part of the colonial era, 
when the issue between local interests as represented by the 
assembly and royal interests as represented by the governor 
became more clearly marked, and when an abrupt dissolution 
would have tended to emphasize that issue more sharply. The 
result of such action might very well have been that a new 
election would be fatal to many of the governor's supporters, 
and that the new house would be more decided in its opposi- 
tion than its predecessor. 

Another feature of the right of dissolution, and perhaps 
on the whole a more dangerous one, was the power to refuse 
dissolution. If it was desirable to dissolve an unfavorable 
assembly, it was just as clearly desirable to keep a compliant 
one when once chosen, a consideration which often caused 
assemblies to be kept in existence for several years. For 
example, in Virginia the assembly which was first called in 
February, 1727, held its second session in May, 1730, its 
third session in May, 1732, and its fourth session in August, 
1734. Another striking case is that of the assembly of 1742, 

1 SewaWs Diary, iii. 255; North Carolina Records, iv. 243. In New 
Hampshire the frequent dissolutions under Governor Belcher gave great 
dissatisfaction. They were due chiefly to failure to agree upon supply bills 
{Provincial Papers, iv. 679, 688). 

2 Jones, History of Georgia, i. 512. 



TRIENNIAL AND SEPTENNIAL ACTS. 1 55 

which held its second session in 1744, its fourth in 1746, and 
its fifth in 1747. 1 The New Hampshire assembly of 1722 
presented as a grievance the fact that it was five years since 
it first met, and prayed for a dissolution. 2 In another case 
in the same province, the governor refused to dissolve the 
assembly till the king's business was done, that is, till an 
appropriate supply was granted. 3 Hamilton, in his famous 
speech in defence of Zenger, referred to the case of a gov- 
ernor in his time who had kept an assembly for "near twice 
seven years together." 4 

That the necessity of limiting the action of the governor in 
the exercise of his functions of summons, prorogation, and 
dissolution was strongly felt, is seen in the large number of 
triennial and septennial acts passed in the different colonies. 
Reference has already been made to the charter provisions 
in Pennsylvania and Massachusetts. In some of the other 
provinces there survived traditions of a freer practice before 
the days of the royal government. Thus, South Carolina dur- 
ing the proprietary period had passed a statute limiting the 
life of an assembly to two years, and providing that sessions 
should be held at least once a year, closing, however, with a 
saving of the proprietors' prerogative to adjourn, prorogue, 
and dissolve any assembly "when and as often as they shall 
think fit." 5 In 1721, the second year of the royal government, 
a similar act was passed, requiring dissolution once in every 
three years. 6 Under the act of 1745 an annual dissolution was 
required; but this action seems to have been regarded as 
radical, for two years later a provision was made for dissolution 
only once in two years. 7 In North Carolina there had been a 
biennial assembly act during the proprietary period, but it was 
disallowed by the crown. 8 In East and West Jersey under 

1 See Hening, Statutes, iv., v. 

2 New Ha?7ipshire Provincial Papers, iv. 24. 
8 Ibid., v. 562. 

4 Howell, State Trials, xvii. 708. 

5 Cooper, Statutes, ii. 79. 6 Ibid., iii. 135. 

7 Ibid., 657, 692. 

8 Martin, Iredell's Public Acts, i. 9; North Carolina Records, ii. 213. 



1/ 



156 THE GOVERNOR'S POWER OVER THE ASSEMBLY. 

the proprietors, provisions for annual elections had been made; 
and in West Jersey the assembly adjourned itself. 1 

These precedents naturally had their influence upon the 
action of the assemblies. In 1723 the New Hampshire as- 
sembly passed a triennial act with a suspending clause; the 
bill was not favorably received by the home government, how- 
ever, and it became evident that the royal assent was not likely 
to be given. In 1728 a new bill was brought in and passed; 
but this time the assembly prudently omitted the suspending 
clause, declaring with questionable logic that failure to dis- 
allow the act proved that it was not offensive to the crown. 2 
Other attempts to enact triennial laws proved less successful. 
New Jersey passed a triennial act in 1728, but it was disal- 
lowed by the crown; and a similar bill passed the assembly 
in 1739, only to be vetoed by the governor. 3 In New York a 
triennial act was passed in 1737, and a strong message was 
sent home by the assembly urging the royal assent. In this 
appeal, reference was made to the long continuance of the last 
two assemblies as a serious grievance, and particular emphasis 
was laid on the fact that the corrupting influence of patronage 
upon the assembly was so great that "in some Counties," to 
use the words of the message, "even their very Representa- 
tives have become themselves their greatest Grievance." The 
Board of Trade, on consultation with its counsel, declared the 
act an infringement of the royal prerogative, and recommended 
its disallowance; a few years later, however, a poor substitute 
was secured in a septennial act, limiting the continuance of 
the assembly to seven years. 4 Virginia passed a septennial 
act in 1762, requiring that a session should be held at least 
once in three years. 5 Finally, in 1767, the home government 
declared itself definitely on the whole subject of such limita- 

1 Learning and Spicer, Grants, Concessions, etc., 368, 423-424. 

2 New Hampshire Provincial Papers, iv. 114-115, 117, 126-127, 146, 
468-469, 472, 489, 492 ; Acts and Laws of New Hainpshire (1771), ch. 107. 

8 Allinson, Acts of Assembly, ch. 133; Morris Papers, 74, 124. 

4 Documentary History of New York (1849-51), iv. 245-256; New York 
Documents, vii. 353, viii. 444; Laws of New York, 1691-1 773, ch. 746. 

5 Hening, Statutes, vii. 517. 



DISTRIBUTION OF PATRONAGE. 1 57 

tions of the governor's power, by a general instruction of that 
year directing the governors not to assent to any act fixing the 
duration of the assembly. 1 

As the motives that led to the passage of these acts are 
plainly apparent, so those which animated the opposition to 
them seem equally clear. It was believed that such acts 
tended to weaken the dependence of the colonial legislature 
upon the governor, and therefore its dependence upon the 
crown, whose representative he was. Governor Montgomerie 
of New York and New Jersey probably stated accurately the 
feelings of many of his fellow-governors when, in urging the 
disallowance of the New Jersey triennial act, he said that his 
predecessors " could not have carried on the publick business 
so quietly and Successfully as they did, if they had been obliged 
to call a new Assembly every three years." 2 

In addition to these constitutional means of influence, there 
was another effective method by which the governor acted on 
the assembly, namely, through his power of dispensing patron- 
age, a function that in many of the provinces was undoubtedly 
an element of considerable importance. Thus, according to a 
contemporary writer, the independence of the Virginia assembly 
was seriously impaired by the assignment of offices to various 
members of the lower house. 3 Similar charges were made in 
Massachusetts; in a pamphlet issued in this province in 1708, 
entitled "The Deplorable State of New-England," is an inter- 
esting passage which shows at least something of the state of 
popular feeling at the time. 4 The writer attributes the gover- 

1 New Jersey Docttments, ix. 637. A year later the New Jersey assembly 
passed a septennial act with a suspending clause. In Allinson's collection 
of New Jersey statutes (ch. 473), the text of this act is followed by a note 
explaining that the act had never received the royal assent, but was inserted 
on the " Probability that so reasonable a law will be regarded." Whether 
this expectation was reasonable may well be doubted; on the other hand, 
the limitation imposed was so slight that the temptation to violate it could 
hardly have been serious. 

2 New Jersey Documents, v. 236. 

8 Hartwell, Blair, and Chilton, Present State of Virgi?iia, 27-28. 

It must needs be a Mortal Sin, to Disoblige a Governour, that has 



4 u 



158 THE GOVERNOR'S POWER OVER THE ASSEMBLY. 

nor's influence over the representatives to his distribution of 
official patronage. Allowance must of course be made here 
for extreme partisanship; but much the same view is gained 
from more trustworthy sources. 1 The New York assembly, in 
urging the passage of the triennial act, had emphasized the 
corrupting influence of official patronage upon the members of 
the assembly. 2 Maryland furnishes an extreme illustration 
of the same point. It was at one time a favorite policy of the 
proprietor, and of his secretary, to win over the members 
of the opposition by appointing them to provincial offices. 
At one time, indeed, an elaborate system of corruption was 
proposed, by which the assembly was to be kept permanently 
under control. 3 

Something should be said in regard to the attempts made 
by the various assemblies to check this dangerous abuse. In 
1678 the question was raised in the Maryland assembly as to 
whether the proprietary sheriffs or law officers should be 
allowed to sit in the assembly. Soon afterwards an act was 
passed disqualifying sheriffs and ordinary-keepers (who received 
their licenses from the governor) ; and three years later the 
assembly enforced its view by throwing out all sheriffs who 
had been elected members. 4 In 1716 an act was finally passed 
disqualifying for membership in the assembly ordinary-keepers 
and all other persons disqualified to sit in the British Parlia- 
ment. 5 In 1757 the lower house passed a radical measure, 
disqualifying for election to the assembly all holders of pro- 
prietary offices; providing, furthermore, that if any person 

Inabled a Man to Command a whole Country Town, and to Strut among 
his Neighbours, with the Illustrious Titles of, Our Major, and, The Cap- 
tain, or, His Worship " .• The Deplorable State of New England (170%), 21. 

1 For example, Hutchinson says of both Shirley and Pownall that they 
used official patronage as a means of influencing the assembly : History of 
Massachusetts, iii. 57. 

2 Documentary History of New York (1849-51), iv. 245. Clarke of 
New York seems to have been a serious offender (see New fersey Docu- 
ments, vi. 75). 

3 Maryland Archives, vi. 183, ix. 331, 375 sea., 423. 

4 Ibid., vii. 17, 63, 114. 

5 Bacon, Laws of Maryland, 1716, ch. 11. 



ACTS DISQUALIFYING OFFICE-HOLDERS. 1 59 

within six years after ceasing to be a member of the assembly 
should hold any office of trust or profit, or receive any pension, 
he should be fined one thousand pounds ; and, finally, forbid- 
ding members to solicit offices for their friends under penalty 
of a fine of the same amount. 1 This was an extreme measure, 
and was of course rejected by the upper house; 2 but it is inter- 
esting, because it shows that civil service reform had made 
some progress in Maryland even at that early date. 

A Virginia act of 1730 disqualified sheriffs absolutely, and 
provided that members accepting other offices of profit should 
resign their seats, though they might be re-elected. A similar 
act was passed in 1762. 3 A South Carolina statute of 1745 
disqualified salaried officers of the province for membership 
in the assembly. 4 The New York assembly, after an attempt 
to disqualify all officers, finally in 1770 passed an act dis- 
qualifying judicial officers for sitting in the assembly; but 
the act was disallowed by the crown. 5 These are compara- 
tively insignificant results, but they are at least interesting as 
showing an appreciation of the evils which they were designed 
to correct. 

Thus far attention has been given to the indirect action of 
the governor upon legislation through his influence over the 
assembly. But the governor was not limited to this indirect 
influence: he was himself a part of the legislative system. 
Some of the early governors had been invested with legislative 
authority, either independently or with the cooperation of the 
council ; but, as has been seen, this abnormal condition gradu- 
ally passed away, leaving to the governor only a limited right 
of issuing ordinances and the power to approve or veto the 
legislation of the assembly. 

Reference has already been made to the governor's right of 
issuing ordinances or proclamations of two classes, namely, 

1 Votes and Proceedi?igs of the Lower House, Dec. 8, 1757. 

2 Ibid., Dec. 16, 1757, May 4, 1758. 
8 Hening, Statutes, iv. 292, vii. 529. 
4 Cooper, Statutes, iii. 657. 

6 New York Documents, viii. 206-207, 215. 



160 THE GOVERNOR'S POWER OVER THE ASSEMBLY. 

those for the regulation of fees and those for the erection of 
courts. It will be remembered also that in both of these cases 
his use of this authority gave rise to serious disputes. 1 With 
these exceptions, however, the issue of ordinances by the gov- 
ernor seems as a rule to have been kept within reasonable 
bounds, and complaints of his exercise of the power are com- 
paratively rare. The most common of the ordinances issued 
by him were proclamations enforcing the provisions of statute 
or treaty, and regulations regarding subjects that might fairly 
be considered matters of executive concern. Some instances 
may be taken almost at random. Thus, in the Virginia stat- 
utes is a proclamation regarding settlement on the outlands 
in time of danger; another forbidding the seating of certain 
lands near the North Carolina border; a third establishing 
regulations for trade with the westward Indians. 2 Again, the 
governor of North Carolina is recommended by his council to 
issue a proclamation regulating the sale of liquor to Indians. 3 
A Maryland proclamation of 1672 prohibits the export of 
sheep, a measure intended to check evasion of the statute pro- 
hibiting the export of wool. 4 During the French and Indian 
troubles the New Hampshire council, at Governor Dudley's 
direction, issued an ordinance requiring the registration of all 
Frenchmen within the province. 5 In 1721 the governor of 
Massachusetts, anticipating war with the Indians, issued an 
order to the frontier settlers directing them to remain on their 
estates and keep possession of the country; and though his 
authority was questioned, yet some extension of the power to 
issue ordinances may be justified by the stress of military 
necessity. 6 Another case, which seems more distinctly an 
encroachment upon legislative ground, is the ordinance issued 
by the governor of New Jersey in 1717 in regard to the regula- 
tion of ferriage. 7 On the whole, however, it may fairly be 

1 See above, p. 118 seq., 137 seq. 

2 Hening, Statutes, iv. 546, 552-553. 

8 North Carolina Records, iv. 45, and cf. 41-42. 

4 Maryland Archives, v. 105. 

6 New Hampshire Provincial Papers, ii. 429. 

6 Hutchinson, History of Massachusetts, ii. '236. 

7 Allinson, Acts of Assembly, ch. 78. 



RECOMMENDATION OF LEGISLATION. l6l 

said that there is no evidence of general or serious abuse of 
the power of issuing ordinances. 

The governor was furthermore, as has been said, a part of 
the regular legislative system of the province, acting with the 
cooperation of the council and assembly: the commission em- 
powered him, with the consent of the council and assembly, 
to make laws not repugnant but, as nearly as might be, agree- 
able to the laws of England. 1 In theory this power seems con- 
siderable. How much did it actually mean in practice? 

In some of the colonies during the earliest period there had 
been, as has been seen, an effort to secure for the governor 
the right of initiative in legislation. All such attempts had 
failed, however ; and during the later period also any attempt 
on the part of the governor to initiate legislation was regarded 
with great suspicion. This feeling was so strong, indeed, that 
when Governor Wentworth of New Hampshire sent down the 
draft of two orders on money matters, to be passed upon by the 
House, his action was resented as tending to impair the inde- 
pendence of the assembly. 2 In reality, the governor had the 
bare right of recommending legislation; and this he usually 
did in his speech delivered before the assembly at the begin- 
ning of its sessions. In this speech he ordinarily gave some 
account of the condition of the province, and, in time of war, of 
the conduct of military operations or of negotiations with the 
Indians; he then advised the passage of laws necessary to 
meet the needs of the province, usually urging as his most 
prominent recommendation the passage of a supply act. 3 The 
governor was also made the medium through which the home 
government communicated with the assembly, receiving always 
in his instructions a number of articles directing him to re- 
commend the passage of particular legislation desired by the 
crown. 4 

1 Commission to Bernard of New Jersey, 1758, § 9; to Allen of New 
Hampshire, 1692, pp. 58-59; to Dobbs of North Carolina, 1761, p. 527. 

2 Neiu Hampshire Provincial Papers, vi. 64. 

8 For an illustration of a governor's speech, see that of Governor Went- 
worth in 1752, Ibid., 130. 

4 For example, Governor Bernard of New Jersey was in 1758 required to 
recommend acts for the following purposes : for the prevention of the in- 

11 



1 62 THE GOVERNORS POWER OVER THE ASSEMBLY. 

Since the right of recommendation necessarily carried with 
it very little actual power, the governor was left to find his 
really important legislative function in his right to approve, 
or to refuse to approve, bills passed by the council and the 
representative house. The commission gave him a negative 
vote on all laws, statutes, and ordinances, "to the end that 
nothing may be passed or done by Our said Council or As- 
sembly, to the Prejudice of us, Our Heirs and Successors." 1 
Furthermore, this veto was not merely suspensive : there was 
no such thing as passing a bill over the governor's head. 

On the other hand, the governor's right of assent to legis- 
lation was neither final nor unrestricted, inasmuch as bills 
approved by him were still liable to disallowance by the crown 
at any time. The home government required that all acts 
passed by the provincial assemblies be sent over, within three 
months after their passage for approval or disallowance by the 
crown; 2 and although such acts were in force until actually 
disallowed by the crown, yet this disallowance might take 
place at any time without any limitation. When, however, 
an act was once confirmed by the crown, it could not be re- 
pealed except in the regular course of legislation. 

In the second place, the governor was restricted in his right 
of assent to legislation, in that there were certain kinds of 

human treatment of servants and slaves ; for the enforcement of the mar- 
riage discipline of the church of England and of military discipline ; and for 
the maintenance of schools. See instructions, §§37, 66, 67, 73. 

1 Commission to Bernard of New Jersey, 1758, § 11; to Allen of New 
Hampshire, 1692, p. 59 ; to Dobbs of North Carolina, 1761, p. 527. 

2 Instructions to Bernard, §§ 28-30 (cf. commission, §§ 9, 10) ; to Allen, 
p. 64 (cf. commission, p. 58); to Dobbs, 1754, § 37 (cf. commission, 1761, 
p. 527). For the proprietary governments, see above, pp. lyseq. The Mas- 
sachusetts charter of 1691 specified that disallowance must be declared- within 
three years; otherwise repeal might take place only by act of assembly. 
This provision was sometimes evaded by the practice of not beginning to 
count the three years until the time when the bills were actually laid before 
the Privy Council. They were often withheld by the Board of Trade 
{Massachusetts Province Laws,\. 486, notes). Acts of. the Pennsylvania 
assembly might be disallowed within six months of their delivery to the 
Privy Council (Chalmers, Opinions, 336). 



RIGHT TO APPROVE OR VETO LEGISLATION. 163 

bills that he was forbidden to approve, a precaution intended 
in particular to protect imperial or British interests against 
injurious local legislation. He was not, for example, to al- 
low the final enactment of bills for the issue of paper money, 
or to approve acts imposing discriminating duties on British 
ships or manufactures. 1 Some of these acts might be passed 
with the so-called "suspending clause," by which execution 
was suspended until the royal consent could be given; but 
others were forbidden absolutely. Sometimes a penalty was 
annexed; that is, the governor was forbidden to pass particular 
acts on pain of the royal displeasure and of recall from his 
province. 2 

These restrictions, however, were much more easily imposed 
than enforced. The colonists generally believed that they 
were unreasonable, that they were infringements of the in- 
herent legislative independence of the assemblies, and conse- 
quently they usually resisted instructions of this kind. Thomas 
Pownall, who was certainly entitled to speak with some author- 
ity, declared : " In some cases of emergency, and in the cases 
of the concerns of individuals, the instruction has been sub- 
mitted to, but the principle never." 3 The instructions pro- 
hibiting the issue of paper money, or, in the proprietary 
colonies, those forbidding the taxation of proprietary estates 
presented peculiar difficulties. If, as sometimes happened, an 
assembly absolutely refused, unless such acts were passed, to 
appropriate military supplies urgently needed for the conduct 
of the war, what was the governor to do? It was almost in- 

1 Instructions to Bernard, §§ 22, 25. Other instructions forbade the 
governor to pass, without a suspending clause, statutes repealing laws then 
in force. He was to pass no private acts without a saving of the queen's 
rights and those of other persons, and no temporary acts unless for dis- 
tinctly temporary ends.^ See Ibid., §§ 14, 15, 17. Cf. also §§ 16, 20, 21, 
23, 26. 

2 See e. g. the instruction in regard to paper money, New Jersey Docu- 
ments, vi. 95-96. Cf. instructions to Bernard, § 22. 

8 Pownall, Admi7iistratio7i of the Colonies, 39-47. Cf. Votes of Penn- 
syivania, iv. 571 : the assembly, in 1756, resolved that the deputy-governor 
" has, or ought to have, full Powers to give his Assent to all such Bills as 
we have an undoubted Right to offer." 



1 64 THE GOVERNOR'S POWER OVER THE ASSEMBLY. 

evitable that he should do what in the majority of cases he 
actually did, that is, yield to the pressure thus put upon him. 

The assemblies soon learned to make the most of these diffi- 
culties and to increase them by various expedients, one of 
which was the practice, pursued in direct defiance of the royal 
instructions, of inserting items entirely foreign to the main 
body of the bill, of attaching legislative riders to bills ap- 
propriating money. Thus in an act for the inspection of 
tobacco the Maryland assembly inserted sections limiting 
officers' fees; 1 and in the supply bill of 1759 tne North 
Carolina assembly inserted a provision for the appointment 
of an agent. 2 

Another device was that of coupling the supply bill with 
some other act desired by the assembly, and refusing to pass 
the one till the other had received the governor's assent. 
Thus, the North Carolina assembly of 1760 refused to pass the 
aid bill until certain other measures were approved by the 
governor. 3 In 171 5 Governor Hunter of New York wrote that 
the revenue act had been passed in return for his assent to the 
naturalization act. 4 Again, in 1 741, the assembly of the same 
province resolved that it would not raise any support for the 
government unless the governor first assented to all the bills 
that it had sent or should send up to him. 5 In 1759 the gover- 
nor of New Hampshire presented to the House an additional 
instruction, directing the assembly to settle salaries on the 
judiciary; whereupon the House replied that it would settle 
suitable salaries on the justices when the province was divided 
into three counties, and not before. 6 Furthermore, the as- 
sembly, through its control of the governor's salary, was able 
to appeal to more selfish motives. 

Under these circumstances, what wonder is it that instruc- 
tions were constantly violated? That they were so violated 
is proved by abundant evidence. In 1749 Governor Johnston 

1 Bacon, Laws, 1763, ch. 18. 

2 North Carolina Records, vi. 34. 8 Ibid., 402 seq. 
4 New York Documents, v. 416. 

6 Morris Papers, 142. 

6 New Hampshire Provincial Papers, vi. 718, 726. 



ROYAL INSTRUCTIONS VIOLATED. l6$ 

of North Carolina apologized for assenting to a paper-money 
bill, urging that only in this way could he raise the necessary 
supplies; and the first royal governor of South Carolina vio- 
lated his instructions by passing a similar act. 1 New Hamp- 
shire also furnishes a striking illustration of the governor's 
difficult position. In 1745, in response to a request from the 
assembly asking the passage of a bill for the issue of paper 
money, Governor Wentworth of that province referred to his 
instructions prohibiting such action, and refused to pass the 
desired bill. He afterwards yielded, on condition that a 
committee of the assembly should instruct its agent to im- 
plore the crown to excuse his action. 2 

These few illustrations, which might easily be multiplied, 
are in accord with the general testimony of the home govern- 
ment; indeed, the order requiring that laws should be sent to 
England for approval was so often evaded that the crown had 
frequently no opportunity whatever to pass upon the legisla- 
tion of a provincial assembly. 3 It is clear, then, that the 
royal restrictions upon the governor's power of assent to pro- 
vincial legislation were by no means universally observed, 
that they often proved ineffective against a strong popular 
sentiment. 

1 North Carolina Records, iv. 922 ; Chalmers, Revolt, ii. 97. 

2 New Ha?npshire Provincial Papers, v. 279, 336, 338. For other illus- 
trations, cf. Ibid., vi. 513 seq.j North Carolina Records, vi. 589-591 ; New 
Jersey Docu?nents, ix. 332; Pownall, Administration of the Colonies, 41 seq. 

8 See the circular of the Lords of Trade in 1752, reciting the general 
neglect of royal instructions, New York Documents, vi. 760 ; see also 
above, pp. 66, 67. 



CHAPTER IX. 

THE POWER OF THE ASSEMBLY OVER THE GOVERNOR. 

Two aspects of the governor's relation to the legislature 
have now been considered : first his influence in the consti- 
tution of the assembly and upon its individual members, and 
secondly the part assigned him in the direct work of legisla- 
tion. It is now time to pass to a consideration of the other 
side, to a study of the control which the assembly was able to 
exercise over the governor and of the use which it made of 
that control in its gradual assumption of executive powers 
properly belonging to the governor. 

In the first place, the assembly was a check upon the gover- 
nor through its very existence as a critical body empowered to 
inspect accounts and eager to detect abuses in the provincial 
administration; furthermore, it gave to the public sentiment 
of the province a constitutional means of expression; it 
organized public sentiment and thus made it effective. The 
value of such influence is easily underrated : an assembly 
which performs this function, even though it be without any 
power of legislation or without the control of the purse, has 
yet in its hands a weapon against arbitrary government which 
is not to be despised. 

The assembly might control the executive by legislation 
directly limiting the governor's powers, although such legisla- 
tion was ineffective unless it received the governor's assent. 
It is true that laws might be enacted with the consent of a 
weak or short-sighted governor, the repeal of which his succes- 
sor would find it difficult, perhaps impossible, to secure; still, 
in order to be effective, this line of attack required some 
means of forcing the governor's assent. 



THE SALARY QUESTION. 1 67 

By far the most important check upon executive action pos- ,/ 
sessed by the assembly was certainly that exercised through 
its power over the purse. Inasmuch as no government can 
maintain itself without money, it is evident that a body 
which has the power to grant or refuse supplies holds the 
key to the situation. Such was the case in all the colonies, 
as has been already noticed. No principle was more firmly 
held than this, that no taxation within the province was legal 
without the consent of the assembly, and this doctrine came 
more and more to mean the domination of the lower house in 
all financial legislation. 

Inasmuch as the general question of supply has already been 
treated somewhat fully in connection with the governor's finan- 
cial powers, it will be enough here to state the main conclu- 
sions there reached. These were, that in nearly all the colonies 
even the bills for the support of the ordinary administration of 
government were temporary, often indeed for a space of only 
one year; that even in those colonies in which there was a 
permanent civil list it was constantly necessary to make 
demands for other purposes; and that these demands were 
often, as in time of war, of the most urgent kind. In the last 
chapter was seen something of the way in which this power of 
granting supplies was used by the assemblies. 

There is one phase of the general subject regarding the 
assembly's control of the purse which requires a special treat- 
ment, namely, that which may for convenience be called the 
salary question. A consideration of this topic involves, in 
the first place, a study of the process by which temporary 
and even annual salary grants became established in most of 
the colonies, with some consideration of the arguments 
advanced on both sides of the controversy. In the second 
place, the effect of the practice will be noticed. 

The crown very early adopted the policy of throwing the 
support of the provincial governments, including the granting 
of official salaries, upon the provincial assemblies. Until the 
institution of the royal government in Georgia, there was but 
one government, royal or proprietary, — that of North Carolina, 
— in which the civil list was not provided for by either tern- 



168 POWER OF THE ASSEMBLY OVER THE GOVERNOR. 

porary or permanent acts of assembly. 1 It soon became clear, 
however, that, if salaries were to be granted by the assembly, 
this body must in the long run control the amount of those 
salaries, and must even have the power to withhold them if 
it should see fit. This was a dangerous situation from the 
standpoint of the home government, which soon awoke to an 
appreciation of the fact that, with a governor dependent for 
his support upon the temporary grants of the assembly, the 
crown would lose one very strong hold upon the colonies. In 
two provinces, Maryland and Virginia, the issue w r as decided 
very early, in favor of the proprietor and the crown respec- 
tively, by the settlement of definite funds for this purpose. 2 
Elsewhere the result was very different, though the same 
demand was made in all the other colonies. 

By the earlier instructions it was required of all the assem- 
blies that no money should be granted to the governor directly, 
but that the grant should be made to the crown with the 
request that it be appropriated to the governor's use if her 
majesty thought fit, otherwise to some other purpose stated in 
the act of grant; until the royal pleasure should be known the 
money was to remain in the hands of the royal receiver. 3 The 
governor was further directed to recommend a permanent 
settlement of salaries. 4 It would appear, however, that the 
requirement of royal assent to salary grants was almost uni- 
versally ignored, and that the recommendation to settle salaries 
fell upon unwilling ears. In 1703 the crown therefore found 
it necessary to issue special instructions on this subject, 
reciting the evil effects of temporary grants in the colonies 
and urging the necessity of fixed salaries; the assembly was 
called upon to settle a salary upon the governor without limi- 
tation of time; and, when that was once done, no governor was 
to accept a present from the assembly on pain of the royal 

1 See above, p. 59. 2 Ibid. 

3 Instructions to Allen of New Hampshire, 1692, p. 6$', to Cornbury of 
New Jersey, 1702, § 21. 

4 Instructions to Cornbury, § 22. For permission formally given to Lord 
Bellomont in Massachusetts to receive ,£1000, see Massachusetts Province 
Laws, i. 419. 



TEMPORARY GRANTS IN NEW YORK. 1 69 

displeasure and of recall from his province. 1 Some other in- 
structions even went so far as to insist that the governor should 
accept nothing less than a permanent settlement. 2 

These demands were easily made ; but how were they received 
by the assemblies? This question, involving a consideration 
of the general controversy that sprang up throughout the 
colonies, may perhaps be studied to best advantage by follow- 
ing the course of the contest in the provinces of New York and 
Massachusetts. 

In New York the policy of making temporary salary grants 
appears plainly as early as 1707. An interesting letter of that 
year pointed out that the revenue of the province was to expire 
in 1709 and that although some of the opposition were resolved 
not to renew it, yet a more far-sighted party proposed to make 
grants, though only from year to year in order to insure the 
dependence of the governor upon the assembly. Governor 
Hunter then appealed to the crown to settle a salary upon 
the governor, and in 171 1 the Board of Trade went so far as to 
recommend, but without success, that a parliamentary revenue 
be established in New York. 3 Then followed a succession of 
grants for fixed terms of years; 4 but finally the House re- 
solved to grant revenue for one year only, and from that time 
the government had to put up with annual grants. 5 The 
crown still persisted in its demands, but without success : 
the assembly declared that it would never give more than tem- 
porary support. 6 When in 1755 these repeated demands met 
with another determined refusal, the Board of Trade appeared 
at last to recognize the hopelessness of its task, declaring that 
it was advisable to allow the governor to accept temporary 

1 New Ha7iipshire Provincial Papers, iii. 251 ; cf. New York Docu- 
me?its, iv. 1040. 

2 See e. g. Hutchinson, History of Massachusetts, ii. 301 sea., 333 sea. 
Cf. New Jersey Doaunents, iii. 99; Massachusetts Province Laws, ii. 633. 

3 New Jersey Documents, iii. 238; Chalmers, Revolt, i. 365-366. 

4 New York Journal of Assembly, i. 375, 448, 580, 585, 646; New York 
Docunients, v. 877-882. 

5 New York Journal of A ssem&ly, i. 700, 734. 

6 Chalmers, Revolt, ii. 315-316. 



170 POWER OF THE ASSEMBLY OVER THE GOVERNOR. 

grants, and, though it held the refusal of the assembly to be 
unwarrantable, instructing the governor not to press the mat- 
ter. 1 Clearly this step was hardly less than an uncondi- 
tional surrender. 

In Massachusetts, as has already been noted, the issue was 
very early defined. According to Chalmers, there was in this 
province a very considerable party composed of those who 
were dissatisfied with the new charter, and who hoped to find 
some compensation in a policy of temporary salary grants. 2 
Under the first two governors, Phips and Bellomont, these 
temporary grants, or presents, were all that the assembly could 
be induced to vote. 3 In 1703 came the additional instruction 
already cited, calling upon the assembly to grant a settled 
revenue, in reply to which Governor Dudley wrote that for the 
present nothing could be done. 4 Again, in 1705, the General 
Court was urged to make a permanent settlement; but the 
House in its reply argued that, since the ability of the 
province varied at different times, it was not expedient that 
salaries, should be permanently fixed. 5 

The efforts of Dudley's successor, Governor Shute, met 
with no better success. In despair of accomplishing any 
result with the assembly, he recurred to the idea previously 
acted upon by Governor Hunter of New York, and petitioned 
the king to settle a permanent salary upon the present gov- 
ernor and upon all succeeding governors in New England. 6 
The Board of Trade reported that a salary ought to be settled 
and paid by the crown to the governor until the people of New 
England could be induced to make permanent grants ; but this 
recommendation was not adopted, and Governor Shute was 
again instructed to recommend in strong terms the settlement 
of a fixed salary. 7 

1 Chalmers, Revolt, ii. 318-320; New York Documents, vii. 32, 39. 

2 Ibid., i. 234. 

3 Ibid., 236. Cf. Massachusetts Province Laws, i. 109, 174, 394, 419, 

437. 

4 Chalmers, Revolt, i. 330. 

5 Hutchinson, History of Massachusetts, ii. 137, 139. 

6 Towns hend Papers, 272. 7 Ibid., 273'. 



THE CONTROVERSY IN MASSACHUSETTS. 171 

The crisis of the struggle came under Shute's successor, 
Governor Burnet, who was instructed to insist on a permanent 
settlement, and who declared his determination to adhere 
strictly to his instructions. 1 Both parties in the struggle were 
now equally determined to hold their ground, and both stated 
their positions with perfect definiteness. The governor pointed 
to the precedent of the British constitution, with its careful 
provisions for the independence of each department of the 
State, calling attention especially to that one which secured 
the independence of the crown by a permanent civil list. He 
urged that the dependence of the executive was the weak point 
of the colonial constitution, and that the remedy lay in placing 
the office on an independent footing, claiming that the avowed 
purpose of keeping the governor dependent upon the assembly 
by means of temporary salary grants was not honorable, inas- 
much as such a course prevented him from acting freely and 
according to his own judgment upon matters of legislation 
coming before him. As evidence that this was the real inten- 
tion of the House in refusing permanent grants, he reminded 
it that it had often kept back the governor's allowance until 
other bills had been approved. 2 

The popular argument, on the other hand, is best stated in 
a message of the House in August, 1728. 3 As against the 
governor's reference to the British constitution, the Represent- 
atives urged that that argument could not be regarded as con- 
clusive, claiming furthermore, that even on the analogy of the 
British constitution no part of the government ought to be 
wholly independent, since it was only by mutual dependence 
that the proper balance could be preserved. They called atten- 
tion to the fact that, although the governor was dependent 
on the assembly for his salary, the assembly was in many ways 
dependent on the governor. In reply to the governor's sug- 
gestion that the temporary salary granted to the governor, in 
contrast with the permanent provision made by Parliament 

1 Hutchinson, History of Massachusetts, ii. 301 seq. 

2 Speech and messages of Governor Burnet, in House Journal, 1728, 
July 24, August 9, September 3. 

3 Message of the House, August 31. 



172 POWER OF THE ASSEMBLY OVER THE GOVERNOR. 

for the support of the crown, showed a lack of proper confi- 
dence in the governor, they urged, while maintaining that 
their policy implied no lack of confidence, that the governor's 
tenure was too uncertain to give him any strong interest in 
the prosperity of the province such as the king had in the 
mother country. In another resolution the House laid down 
the same principle, declaring that, after a salary was settled, 
the governor's particular interest would be very little affected 
by serving or neglecting the interest of the people. a This 
one statement contains the gist of the whole controversy, giv- 
ing essentially the argument of the assembly and indicating 
the argument of the crown. 

The two positions were now frankly stated, and they were 
irreconcilable. In the meantime the assembly had all the 
advantage on its side, insisting that the governor should take 
a temporary salary or none at all. Burnet maintained a gal- 
lant and honorable but hopeless struggle until the time of his 
death, constantly refusing, at great personal sacrifice, the most 
liberal* propositions if only the principle were conceded. 2 

It would seem that by this time the hopelessness of attempt- 
ing to force the royal policy upon the assembly must have 
been clear ; but the instructions to the next governor give no 
evidence that the home government was inclined to yield. 
Nevertheless, the contest was practically over. Burnet's suc- 
cessor, Belcher, was obliged at first to get special leave from 
the crown to assent to particular grants, and finally to obtain 
a general permission to accept temporary support. 3 The Board 
of Trade, though it recommended this surrender, urged that 
it would be better for the crown to establish a standing salary; 
but again its recommendation failed of any practical results. 
Shirley, who succeeded Belcher, was directed to recommend a 
permanent settlement, but, if that could not be secured, to 

1 Address of the House of Representatives, cited in Hutchinson, History 
of Massachusetts, ii. 319. 

2 Townshend Papers, 273 sea. 

3 Hutchinson, History of Massachusetts, ii. 333, 338. Massachusetts 
Province Laws, ii. 632-635; Chalmers, Revolt, ii. 139; Townshend Papers, 
274 sea. 



EFFECT OF TEMPORARY GRANTS. 1 73 

accept annual grants. 1 Thus in Massachusetts, as in New 
York, the contest ended in the victory of the assembly. 

The struggle in the other provinces presents no peculiar 
features, unless in the case of New Hampshire, whose assembly 
was several times induced to settle a salary upon the governor 
during his term of service. Even this measure of success was 
finally lost, and New Hampshire followed the example of her 
neighbors in making annual grants. 2 

There can be no doubt that the House used its power to 
extort legislation from the governor even in violation of his in- 
structions, as a few examples will plainly show. For example, 
Clarke of New York was charged with having passed the trien- 
nial act in return for his salary, which was not always voted 
as a matter of course. 3 Again about 1765 the South Carolina 
assembly, irritated by a real or supposed breach of its privi- 
leges, withheld the governor's salary altogether ; 4 and at an 
even earlier date the council of the same province had declared 
that the acceptance of temporary grants by the governor was 
"the great bane" in the province. 5 In 1721 the Massachusetts 
House resolved that it would not consider grants and allow- 
ances until the governor had passed upon the acts of that 
session. 6 In 1727, when a bill for the emission of paper 
money, presented by the House, was vetoed by the governor 
on the ground that it was contrary to his instructions, the 
House again withheld salaries; whereupon a new bill of 
similar purport sent up to the governor received his approval. 7 
Lewis Morris, while president of the New Jersey council, 
wrote: "The rendring governors and all other officers intirely 
dependant on the people is the generall inclination and en- 
deavour of all the plantations in America, and nowhere pur- 
sued with more Steadinesse and less decency than in New* 

1 Massachusetts Province Laws, iii. 450. 

2 New Hampshire Provincial Papers, iii. 260, 308, iv. 543, 550, 760, vi. 
674, 676, 696, 716, vii. 179, 227. 

8 New York Journal of Assembly, i. 735; Chalmers, Revolt, ii. 149-150. 
4 South Carolina Historical Society, Collections, ii. 189. 
6 Ibid., i. 299. 

6 Hutchinson, History of Massachusetts, ii. 230. 

7 Ibid., 296. 



174 POWER OF THE ASSEMBLY OVER THE GOVERNOR. 

Jersie." 2 Morris himself afterwards became governor, and 
confirmed his previous statement by his own experience. 2 

Nowhere, however, was the policy of keeping the governor 
under control by temporary grants, of granting money in 
exchange for legislation, more frankly and more cynically 
avowed than in Pennsylvania. In 1709 the assembly declared 
that the duty of supporting the government was grounded 
upon the "condition precedent" that grievances should be 
satisfied; 3 and the governor was informed that the House had 
voted him two hundred pounds, and that the speaker would 
present him a bill for that amount when he had passed the 
acts referred to him. 4 On another occasion the assembly 
thanked the governor for passing certain bills, and then gave 
him an order on the treasurer for his salary. 5 Under Gover- 
nor Keith the principle of bargain and sale seems to have been 
carried to an extreme point; indeed, so largely a matter of 
course did this system become that the assembly in 1744, 
in giving Governor Thomas his annual salary at one time 
instead pf granting it as usual in two instalments, alluded to 
its action as a special " Mark of Confidence. " 6 

Another notorious offender in this respect was Governor 
Denny. In 1759, in violation of his instructions, he signed 
an act for the issue of bills of credit. The councillors in their 
formal protest insinuated improper motives, and immediately 
after his approval of the bill he was presented by the speaker 
with an order on the treasurer for one thousand pounds. In 
the following year the proprietary protested against several 
acts passed by Denny, for each of which, according to Chalmers, 
he had received a distinct sum from the delegates, with an 
"indemnification" against the forfeiture of his bond. 7 The 

1 New Jersey Documents, v. 315. 

2 For the New Jersey practice, see Ibid., vi. 259, 421, vii. 251, xjv. 177 ; 
Morris Papers, 154. 

8 Proud, History of Pennsylvania, ii. 36-37. 

4 Ibid., 32-33 ; Pennsylvania Records, ii. 492-493. 

5 Pennsylvania Records, iii. 174. 

6 Ibid., iv. 688. Cf. Historical Review of the Constitution and Govern- 
ment of Pennsylvania (1759), 72-73. 

7 Pennsylvania Records, viii. 357-362 ; Chalmers, Revolt, ii. 344. See 



"THE PURCHASE OF GOOD LAWS." 175 

demoralizing influence exerted upon the public conscience by 
such practices is well illustrated by the cynical declarations in 
a publication sanctioned by no less distinguished a patriot than 
Benjamin Franklin. " Every proprietary Governor," it was said, 
"has two Masters; one who gives him his Commission, and 
one who gives him his Pay," adding, "the Subjects Money is 
never so well disposed of as in the Maintenance of Order and 
Tranquility, and the Purchase of good Laws." 1 

It is easy to see that this method of controlling the execu- 
tive was in many respects thoroughly vicious. It proved the 
danger of having an executive dependent for support "upon 
the temporary and arbitrary will of the legislature," inasmuch 
as this body often used its power improperly; and it gave rise 
to constant bargaining between governor and assembly, often 
on terms dishonorable to both. Nevertheless, the force of the 
popular argument, as stated by men like Franklin, cannot be 
denied. Here, it was said, were strangers, with no permanent 
stake in the province which they were sent to govern, often 
men of vicious character or mercenary motives, with little 
sense of personal responsibility, and officially accountable 
only to a distant authority across the sea: hence, if there was 
to be any effective popular control of the executive, it must 
be exercised by making the governor feel his dependence for 
support upon the assembly. 2 

It is worth noting that the men of the constitutional period, 
who had seen the working of the system in the colonies, even 
extreme radicals like Jefferson, were able to see that, although 
the method was perhaps inevitable under the circumstances of 
the colonial era, it was yet inherently vicious ; they saw that 
such a policy could have no justification in an elective system 
in which the executive, just as truly as the legislature, was 
the representative of the people. In Jefferson's draft of a 
constitution for Virginia there was a provision that the gover- 

also the statement of Governor Sharpe tending to support the charge made 
by Chalmers, Maryland Archives, ix. 351. 

1 Historical Review of the Constitution and Government of Pennsyl- 
vania (1759), 72, 73- 

2 Almon, Prior Documents, 229. 



176 POWER OF THE ASSEMBLY OVER THE GOVERNOR. 

nor's salary should be unchanged during his whole term of 
office; 1 and the same principle was laid down by the framers 
of the constitution of the United States, in the clause provid- 
ing that the salary of the President is not to be increased or 
diminished during his term of office and that during that period 
he is not to receive "any other emoluments from the United 
States, or any of them." 2 

1 Jefferson, Writings {Ford's edition), iii. 326. 

2 Constitution, Art. II., § 1, 1" 7. - 



CHAPTER X, 

THE ENCROACHMENTS OF THE ASSEMBLY UPON THE 

EXECUTIVE. 

It has been seen that, although on the one side the governor 
had in various ways considerable power over the assembly, the 
latter on the other hand had a still more effective weapon 
in its control of the purse. At first the assembly used this 
power merely to check abuse of executive functions, but it did 
not stop there : its next step was to deprive the governor even 
of the actual executive power itself in certain important 
cases. 

There can be no doubt that it is the tendency of the legisla- 
ture, when once firmly established, to encroach upon the proper 
functions of the executive, especially by minute supervision 
and control; and that in the case of the colonial assemblies 
this tendency was greatly strengthened by the misconduct of 
governors. 1 The corruption in the provincial governments 
also served to call the attention of the people to the usages in 
the charter colonies of New England, where the executive as 
well as the legislature was representative, and where a very 
important part of the executive business was performed by 
committees of the assembly. It is true that much of the New 
England republican system was in the nature of the case 
impracticable in the provincial governments, since in these 
colonies the governor himself could not be got rid of, but had 
to be accepted as the agent of the crown, and as such con- 
stantly in opposition to local interests. The popular policy 
was, therefore, first to insure as far as possible the governor's 

1 Pownall, Administration of the Colonies, 50; New York Journal of 
Assembly, i. 1 70-171. 

12 



178 ENCROACHMENTS OF THE ASSEMBLY. 

dependence upon the assembly by the system of temporary 
grants, and secondly to weaken the executive as far as possible 
by the transference of many of its proper functions to the 
assembly. 

Of the reality of this New England influence upon the other 
colonies there can be no doubt. New Englanders very early 
pushed out into the other colonies. The New England ele- 
ment in Long Island made itself felt in the earliest politics of 
New York ; and to other provinces also these transplanted New 
Englanders were likely to carry with them the political spirit 
of the Puritans. It seems to have been very early recognized 
that these settlers could best be attracted by liberal political 
institutions. There is evidence, too, that the practice of one 
colony was occasionally cited by the assembly of another. 1 
In the New Hampshire records of 1755 are recorded the votes 
of the Massachusetts General Court appointing a committee 
of war. 2 In 1743 Governor Morris of New Jersey wrote of the 
members of the assembly: "They are gen lly so fond of the 
example of the parliament of 1641 & that of their neighbours 
in Pensilvania & New England, that until some measures are 
taken in England to reduce them to propper limits I suspect 
they will not mend much." 3 Governor Sharpe said of the 
Maryland assembly in 1758 that their minds were "infected 
with the Disputes of the Pensilvanians. " 4 

These are only a few chance illustrations, but they leave 
no room for doubt that the constitutional life of the different 
colonies was not isolated and independent, that tendencies 
which made themselves felt in Massachusetts or Pennsylvania 
had a very real influence in New York and Maryland. By 
the formation of Massachusetts into a royal government the 

1 This comparison of practice in different colonies was not confined to 
the assemblies. For example, there is a letter written by James Alexander 
of New Jersey to Joseph Murray of New York, inquiring as to the Custom 
in other colonies in regard to the governor's sitting with the council in its 
legislative sessions. The query was to be extended to correspondents in 
Virginia, South Carolina, and the West India governments. See letter of 
December, 1747, New Jersey Documents ; vii. 77-81. 

2 New Hampshire Provincial Papers, vi. 366. 

8 Morris Papers, 162. 4 Maryland Archives, ix. 177-178. 



NEW ENGLAND INFLUENCE. 179 

republicanism of that colony lost something of its complete- 
ness; but on the other hand it gained in influence, since now 
for the first time the traditions of the old republican sys- 
tem had been placed upon a substantial footing and received 
legal recognition within a royal government. The example of 
Massachusetts might now be cited with greater force by the 
popular party in other governments; and Massachusetts thus 
became the natural medium through which these New Eng- 
land ideas were communicated to the other colonies. The 
influence of Pennsylvania made itself felt in a lesser degree 
but in much the same direction, since here also under the 
liberal charter of the founder, the people and the assembly 
had made serious inroads upon the executive authority of the 
governor. 

Among royalists the leadership in these democratic tenden- 
cies was very generally attributed to New England. Chalmers 
says of the policy of temporary grants: "That profound 
determination the New-English imparted, with other lessons, 
to every colony. " a Governor Cornbury wrote of the preva- 
lence of republican ideas in New York and New Jersey, 
especially in the east end of Long Island, "where they are 
generally Commonwealths men/' 2 Governor Nicholson of 
South Carolina wrote in 1724 that the "spirit of common- 
wealth-maxims, both in church and state, increase here daily," 
chiefly, as he supposed, by the influence of the New Eng- 
enders. 3 Governor Cosby of New York, writing in 1732, 
said : " Y e example and spirit of the Boston people begins to 
spread amongst these Colonys In a most prodigious maner. " 4 

1 Revolt, i. 224. 2 New Jersey Documents, iii. j8. 

3 Chalmers, Revolt, ii. 99; South Carolina Historical Society, Collections, 
i. 283. 

4 New Jersey Documents, v. 321. Qi.Ibid., iii. 283. An extreme royal- 
ist view of this New England influence is given by Chalmers, who, speak- 
ing particularly of the colonists of North Carolina at the close of the 
seventeenth century and at the beginning of the eighteenth, says : " During 
that gloomy period, New England alone cultivated her former commercial 
connection with them ; supplying their inconsiderable wants, and carrying 
their tobacco and their corn without restraint wheresoever interest directed 
her traders. When the original planters . . . had engrafted New-English 



180 ENCROACHMENTS OF THE ASSEMBLY. 

There can thus be no doubt of the reality of this New Eng- 
land influence or of its character. 

The assembly had gained its power over the governor chiefly 
through its control of the purse : it was therefore natural that 
the first assumption of executive powers by the assembly 
should be in the department of finance. The assembly, and 
within the assembly the House in particular as the body 
invested with the exclusive right of granting the people's 
money, felt that it had also the right in its representative 
character to determine how that money should be spent. The 
representatives claimed the right not merely to appropriate 
money in general terms, but to define narrowly and in detail 
the uses to which it was to be put, holding that it was their 
right and duty to provide all necessary safeguards for a proper 
application of the money to the purposes for which it was in- 
tended. It is clear that this view might easily have led to an 
assumption of powers properly executive. 

Reference has already been made to the fact that the gover- 
nor's -financial powers had been brought within very narrow 
limits by the practice of appropriation in detail, by reason of 
which he had come to have hardly more than the power of an 
accounting officer, issuing his warrants in accordance with the 
detailed appropriations made by the assembly, and having 
very little real discretion. It will now be seen that even this 
function was in some cases taken from him by the assembly, 
though it is hardly safe to say that this transference was 
general ; in fact, though there are many illustrations of such 
action, the practice was nevertheless in all probability usu- 
ally regarded as exceptional and irregular. It is important to 
note, however, that this part of the governor's prerogative was 
under some circumstances invaded in almost all the colonies. 
In New York at one time the assembly appropriated salaries 
to be paid without any warrant from the governor, though it 
seems finally to have retired from this position and to have 

maxims upon their stock of native principles, such specimens of turbulence 
were given by them to the other provinces, during the reign of Anne, as 
may be conceived but cannot be described " {Revolt, i. 398-399). 



ENCROACHMENTS IN FINANCE. l8l 

allowed salaries to be issued by the governor's warrant. 1 
Governor Dobbs of North Carolina complained that payments 
were made without his warrant; and even in Virginia Gover- 
nor Dinwiddie felt himself obliged to assent to a bill intrust- 
ing the disposition of funds to commissioners. 2 In Pennsylvania 
it was a common practice for the speaker to issue orders upon 
the treasurer for the payment of money; in the case of the 
governor's salary this was regularly done. 8 

The governor's power of issuing warrants was reduced to a 
mere formality by the requirement that money, even when 
duly appropriated, should not be drawn out of the treasury 
without a special vote of the assembly. South Carolina, for ex- 
ample, imposed this restriction. 4 In Massachusetts the General 
Court assumed the right of examining the muster rolls, pass- 
ing upon each item, and voting an order on the treasurer for 
its payment if approved. The governors protested against 
this practice, but the House persisted in it for many years, 
until finally the crown instructed the governor not to allow 
such provisions in future acts of supply; whereupon the 
House, after a vigorous contest, yielded under protest. 5 In 
New Hampshire the assembly claimed and exercised the same 
power, though it was denounced by Governor Wentworth as an 
invasion of the prerogative. 6 

Thus the assembly had in many cases deprived the governor 
of even that limited control over provincial finance involved 
in the requirement of his warrants for the payment of public 

1 New York Documents, iv. 1146, vi. 353, 820-821; Chalmers, Revolt, 
ii. 315. For practice in New Jersey, see New Jersey Documents, ix. 
154-155 ; Allinson, Acts of Assembly, ch. 301. 

2 North Carolina Records, vi. 320; Dinwiddie Papers, i. 161. 

8 See e.g. Pennsylvania Records, ii. 412. Pownall notes the fact that 
in many colonies the governor's warrant was not always required: Admin- 
istration of the Colonies, 52. 

4 Cooper, Statutes, iii. 191, 481-484 (acts of 1722 and 1737). 

5 Massachusetts Province Laws, ii. 219-222, 235-236, 278-280, 574, 593, 
596, 702; Hutchinson, History of Massachusetts, ii. 266, 338. Cf. Province 
Laws, 1730-31, ch. 17, 1733-34, ch. 7. 

6 New Hampshire Provincial Papers, v. 283, vi. 343. For similar 
action taken by the New York assembly, see " Representation of the Board 
of Trade," 1751, New York Documents, vi. 616. 



1 82 ENCROACHMENTS OF THE ASSEMBLY. 

money. In other financial matters also the House, either 
directly or through its committees, assumed functions properly 
executive in their character. 1 

From the fundamental assumption that the assembly as the 
representative of the people was the constitutional guardian 
of the people's money, there was only a. short step to the claim 
by that body of the right to appoint those officers who were 
charged with the collection, custody, and disbursement of the 
public funds. The prevailing doctrine of the colonial assem- 
blies upon this point is briefly summed up in the follow- 
ing resolutions passed in 1753 by the assembly of Jamaica: 
"Resolved, That it is the inherent and undoubted Right of 
the Representatives of the People to raise and apply Monies 
for the Service and Exigencies of Government, and to appoint 
such Person or Persons for the receiving and issuing thereof 
as they shall think proper, which Rights this House hath 
exerted, and will always exert, in such manner as they shall 
judge most conducive to the service of His Majesty, and the 
Interest of His People." 2 

The most important exercise of this assumed right was the 
appointment by the assembly of the provincial treasurer, a 
practice which prevailed in a majority of the provincial gov- 
ernments. In New Hampshire, New Jersey, and Georgia it 
would seem that the assembly had not succeeded in wresting 
from the executive this appointing power. 3 In Maryland, there 

1 In New Hampshire the assemblies appointed committees to farm out 
the excise {Provincial Papers, iv. 204, v. 660). The Virginia assembly in 
1 701 appointed a committee to oversee the building of the Capitol (Hening, 
Statutes, iii. 214). 

2 North Carolina Records, v. 758. 

3 See New Hampshire Provincial Papers, iv. 6, 533, vi. 860. Governor 
Belcher of New Jersey in his report gave an account of the offices in the 
province, naming some which were filled in a different way, and adding that 
all other civil officers were appointed by the governor {New Jersey Docu- 
ments, viii. (2) 86). In 1762 Governor Hardy appointed a treasurer for the 
eastern division of the province during the royal pleasure. In 1774, on 
Skinner's resignation, the House undertook' to nominate his successor, and 
finally the same person who had been so nominated was appointed by the 
governor and council (New Jersey Historical Society, Proceedings, v. 59- 



THE PROVINCIAL TREASURER. 1 83 

appears to have been a conflict of precedents. 1 When the 
assemblies had gained this power, it seems to have been usual 
to make the appointment by formal act of assembly; some- 
times, however, it was done by simple resolution of the House 
of Representatives. 2 

Even when the appointment was made by act of assembly 
the lower house clearly had the real choice; for such a bill, 
like all others having to do with the raising of money, would 
originate in the House, and amendments by the council would 
be sure to meet with resistance. In North Carolina in 1760 
the council ventured to change the name of the treasurer as 
given in the bill of the House, and the House agreed to make 
the change in this case, saving "the inherent right of this 
House, to nominate Persons to be appointed to the office of 
Public Treasurers." 3 In South Carolina the Representatives, 
or "House of Commons," as they styled themselves, at first 
nominated the treasurer, but they were forced to consent to 
appointment by act of the governor, council, and assembly. 4 
In Virginia there was for a time a rule which kept the treas- 
urership practically in the hands of the House exclusively; 
this was the provision that the speaker should be ex officio 
treasurer. 5 

Something should be said as to the process by which the 
appointment of treasurer came into the hands of the assembly. 
In Massachusetts the charter itself gave a constitutional sanc- 

61 ; New Jersey Documents, ix. 366, x. 420 note, xiv. 249-250). For 
Georgia, see Jones, Colonial Acts of Georgia, 23, 49, 145-146, 157, 166, 168, 
179, 212; note the references to "his majesty's treasurer." Cf. Stokes, 
Constitution of the British Colonies, 120, 184. Stokes, in his general account 
of the royal governments, was undoubtedly thinking particularly of Georgia. 

1 Maryla?id Archives, viii. 352 ; Votes and Proceedings of the Lower 
House, April 18, 1758. For the opinion of Attorney-General Willes in 1737, 
who held that, in spite of precedents for the appointment of the treasurer 
by the assembly, the proprietor still had the right of nomination, see Chal- 
mers, Opinions, 179. 

2 See e. g. New York Journal of Assembly, i. 197 ; Votes of PennsyU 
vania, iv. 271, 490. 

8 North Carolina Records, vi. 508. 
4 Cooper, Statutes, ii. 299, iii. 148, 
6 Hening, Statutes, v. 64, 173. 



1 84 ENCROACHMENTS OF THE ASSEMBLY. 

tion to the practice, by the provision that all civil officers, 
with the exception of those connected with the administration 
of justice, should be appointed by the General Court. 1 In 
New York the issue arose during Lord Cornbury's corrupt 
administration, when the assembly of 1703 passed resolutions 
requesting, in view of previous misapplication of public money, 
that some person might be commissioned as treasurer by the 
governor, "for the receiving and paying of such Monies now 
intended to be raised for the publick Use, as a Means to 
obstruct the like Misapplication for the future." 2 In 1705 
the assembly passed a vote declaring its intention of ap- 
pointing a treasurer "for receiving and paying the publick 
Monies to be raised by this House." 3 By 171 5 the House had 
apparently carried its point, for in that year Governor Hunter 
wrote that by the new supply act the funds were lodged with 
the treasurer, adding that "no Act could lodge them other- 
wise." 4 In 1768 the matter had gone so far that the treasurer 
of that year was invested with his commission by the speaker 
and gave bond to the speaker, a circumstance indicating to 
what an extreme point had been carried the conception of the 
treasurer as peculiarly an officer of the lower house and 
almost independent of the crown. 5 

In Virginia the treasurer was regularly appointed by act 
of assembly from the year 1704 until 1738, when the office 
was attached to the speakership of the House. 6 This system 
proved a failure, however, and the treasurer was again appointed 
as before by act of assembly, in which the lower house prob- 
ably had the right of nomination. 7 In South Carolina, acts 
were passed appointing receivers of public taxes. In 1707 it 
was enacted that the " Commons " should have the right to 
nominate the public receiver of the province; and although 
this act was repealed by the proprietors, yet in 1721 it was 

1 Charter of 1691, in Poore, Charters and Constitutions, i. 942. 

2 New York Journal of Assembly, i. 170. 
8 Ibid., 197. 

4 New York Docume?its i v. 416-417. 5 Ibid., viii. 61. 

6 Hening, Statutes, iii. 225, iv. 135, 150, 433, v. 64. 

7 Ibid., viii. 210, 211. 



THE TREASURER AS LEADER OF THE ASSEMBLY. 1 85 

decreed that the treasurer should thereafter be appointed by 
the general assembly. 1 This appointment was made by ordi- 
nances, which like statutes required the concurrence of gov- 
ernor, council, and assembly. The movements in the other 
provinces present no peculiar features which require discus- 
sion here. In one colony at least, that of North Carolina, the 
home government made a virtue of necessity by instructing the 
governor that, although the appointment of treasurers by act 
of assembly was irregular, yet it would be improper to set 
aside a usage of so long standing. 2 

The appointment of the treasurer by the assembly took the 
control of provincial finance almost entirely out of the gov- 
ernor's hands and placed it in those of an officer who was 
generally regarded as "solely and entirely a servant of the 
assembly." 3 The treasurer was often a person of considerable 
importance. In Virginia, as has been seen, the speaker was 
for a time treasurer also, and consequently possessed great 
influence, which he was charged with using in improper 
ways. 4 In 1731 Governor Burrington of North Carolina wrote 
that the treasurer Edward Moseley was speaker and manager 
of the assembly. 5 Chalmers charges the treasurer of North 
Carolina, John Starkey, with having, like the Virginia treas- 
urer, made a corrupt use of the power he possessed over the 
members of the assembly. 

This union of legislative leadership with financial admin- 

1 Cooper, Statutes, ii. 16, 41, 65, 299, iii. 148. 

2 For usage in North Carolina and the other colonies, see North Caro- 
lina Records, iii. 291, 299, 302, iv. 1006, 1020, vi. 55 (note the appointment 
of a treasurer for life, vi. 218) ; Votes of Pennsylvania, i. 88, 117, iv. 271, 
490; Proud, History of Pennsylvania, ii. 60, 218; Pennsylvania Archives, 
1st Series, iv. 600. 

8 Pownall, Ad?ninistration of the Colonies, 52. 

4 Hening, StaUites, viii. 210; Dinwiddle Papers, i. 307, 312; Chalmers, 
Revolt, ii. 354. 

5 North Carolina Records, iii. 151, 265. 

6 It is not certain that the charge was well founded. There is a letter 
of the royal receiver-general, who in asking a leave of absence proposed 
Starkey as his substitute, commending him as a man of unspotted integrity 
and honor. See Ibid., v. 589. Cf. Chalmers, Revolt, ii. 358-361 ; also 
North Carolina Records, vi., Prefatory Notes, xxxiii-xxxiv. 



1 86 ENCROACHMENTS OF THE ASSEMBLY. 

istration suggests an interesting comparison with the parlia- 
mentary system; but the combination in one person of the 
three functions of leader of the House, speaker, and minister 
of finance is perhaps without precedent. If it were profit- 
able to dwell upon what might have been, it would be inter- 
esting to consider how this development might have worked 
itself out had it been uninterrupted by the Revolution ; not 
improbably it might have led ultimately to a modified form of 
parliamentary government. 

The interference in appointments on the part of the assembly 
was not confined to the choice of treasurer, but extended to a 
large number of other offices, chiefly those concerned with the 
collection or payment of public money. It has been noticed 
that in Massachusetts the assembly had a constitutional right 
to appoint administrative officers, and the example set by 
Massachusetts was followed in nearly all the colonies. In 
New York, collectors, excise-commissioners, and commis- 
sioners for various other purposes were appointed by act of 
assembly; indeed, it was a standing ground of complaint on 
the part of the New York governors that the assembly con- 
stantly assumed this right of exercising executive functions. 1 
In New Jersey, during Queen Anne's War, the assembly 
passed an act for raising three thousand pounds, naming in 
this act two treasurers, commissioners for managing the ex- 
pedition against Canada, and a commissary. 2 Again) during 
the last French war commissioners were appointed by the 
assembly to carry out the provisions of the military supply 
acts; but the home government objected strongly to this ac- 
tion and forbade the governor's assent to future acts of that 
character. Governor Bernard, however, failed to comply with 
his instructions on that point. 3 

1 New York Acts of Assembly, 1691-1718, 97; Laws of New York, 
1 691-1773, chs. 934, 935, 1598; New York Documents, vi. 285; Chalmers, 
Revolt, ii. 315. 

2 New fersey Documents, xiii. 415. 

8 Ibid., ix. 154, 158, 170. The assembly also appointed county collectors, 
boundary commissioners, commissioners of river navigation, of roads and 



APPOINTMENTS BY THE ASSEMBLY. 1 87 

Outside of Massachusetts the two provinces which carried 
this policy to the greatest extreme were South Carolina and 
Pennsylvania. In South Carolina the practice had grown up 
under the weak proprietary administration and had secured a 
hold too strong to be shaken off. Here in 1721 it was enacted 
that the treasurer, comptroller, powder-receiver, and all other 
civil officers paid out of the public funds should be ap- 
pointed by the assembly. 1 Among other officers appointed in 
the same way were commissioners for military supplies, Indian 
agents, and Indian commissioners. 2 t In 1729 an effort was 
made to stop the practice : Governor Johnson was directed not 
to give his assent to any law for the appointment of officers, 
and he declared his intention of insisting on a strict compli- 
ance with his instructions. 3 The effort had little effect, how- 
ever; for Johnson's successor, James Glen, wrote in 1748: 
"Almost all the places of profit or of trust are disposed of by 
the General Assembly. . . . The executive part of the gov- 
ernment is lodged in different sets of Commissioners. . . . 
The above officers and most of the Commissioners are named 
by the General Assembly, and are responsible to them alone. 
. . . Thus the people have the whole of the administration in 
their hands." 4 

In Pennsylvania the assembly assumed the appointment of 
nearly all administrative officers. In passing an act for any 
purpose it was customary for the assembly not only to provide 
the necessary official machinery for its enforcement, but also 
to make the actual appointment of the officer. Thus, for 
example, in the loan acts the assembly appointed trustees of 
the loan office; 5 in an act levying taxes, special commis- 
sioners were named to enforce its provisions. 6 Naturally 

bridges, and of barracks. See Allinson, Acts of Assembly, ch. yy, § 6, ch. 
93, § 12, chs. 319, 320, 370, 396, 407, 418, 541. 

1 Cooper, Statutes, iii. 148. 

2 Ibid., ii. 158, 176, 183, 189, 311, 315, 624, 654, iv. 4, 9, 14, 45, 52, 154, 
157, 166. 

8 South Carolina Historical Society, Collections, ii. 119, 134. 

4 Ibid., 303-304; cf. Carroll, Historical Collections, ii. 220-221. 

5 Statutes at Large of Pennsylvania (1896), iii. 325, 391. 

6 Ibid., ii. 389. 



1 88 ENCROACHMENTS OF THE ASSEMBLY. 

therefore it became customary for persons desiring such ap- 
pointments to apply not to the governor but to the as- 
sembly; an example is the petition, in 1750, of R. Shewell 
of Philadelphia, baker, praying to be appointed flour-brander 
for the city and county of Philadelphia. 1 In 1757, after 
the assembly had declared that the nomination of Indian 
commissioners was its "settled right," as it was the right 
of the British House of Commons, the governor's message 
objected only to the choice of commissioners from the mem- 
bers of the assembly, not to that body's exercise of the right 
of nomination. 2 Andrew Hamilton, speaker of the assembly, 
on retiring from public life in 1739, made a speech in which 
he congratulated the province on the fact that it had no 
officers except those who were necessary and who earned their 
salaries, and that these were generally either elected by the 
people or appointed by their representatives. 3 

These are the most striking cases ; but in all the colonies 
the assemblies had, to a greater or less extent, assumed the 
exercise of the appointing power. 

From the administration of finance and the appointment 
of officers, the assembly was naturally led to encroachments 
upon another department which may with even greater pro- 
priety be regarded as the exclusive right of the chief execu- 
tive. If there is any function which especially requires a 
concentration of authority in a single head, it is certainly the 
command of military forces and the conduct of military opera- 
tions. Yet even into this field the assembly forced its way, 

1 Votes of Pennsylvania, iv. 143. 2 Ibid., 747, 750. 

8 Proud, History of Pennsylvania, ii. 217. For the practice in the other 
colonies, see Chalmers, Opinions, 361 ; New Hampshire Provincial Papers, 
iii. 761, v. 177, 191, 207, 220, vi. 140, 232; Jones, Colonial Acts of Georgia, 
37, 47, 63, 102; Martin, Iredell's Public Acts, i. no; North Carolina 
Records, vi. 660; Maryland Archives, vii. 610. In regard to a Maryland 
statute Attorney-General Pratt gave his opinion that " the sole nomination 
of those commissioners who are new officers, appointed by this bill, belongs 
neither to the proprietary, nor the lower house ; but, like all other regula- 
tions, must be assented to by both, but can be claimed by neither " : Chal- 
mers, Opinions, 264. 



INTERFERENCE IN MILITARY AFFAIRS. 1 89 

availing itself of the exceptional opportunities for such en- 
croachments afforded by the frequent French and Indian wars 
of that period. The urgent need of supplies for military 
purposes occasioned by these wars enabled the assembly, in 
making its grants of money, to impose the most arduous con- 
ditions. This power it used in three general ways. In the 
first place, in granting military supplies it prescribed in detail 
the purposes for which they were to be expended, dictating 
the course of military operations and the disposition of troops. 
Secondly, it left in the hands of committees of the assembly, 
or of commissioners appointed by act of assembly, the dispo- 
sition of these funds, often too with a very considerable con- 
trol of the conduct of military enterprises. Finally, through 
the appointment and removal of officers, it went so far as to 
interfere with the discipline of troops. 

Of all these ways in which the assembly infringed upon the 
military prerogative of the governor there are abundant illus- 
trations. Take, for example, the first instance, — the power 
assumed by the assembly of regulating the employment of 
military forces. The Pennsylvania assembly voted in 1757 
that of fourteen hundred men to be enlisted, three hundred 
should be employed in garrison and the remaining eleven hun- 
dred in ranging and scouting parties. 1 Again, an order of the 
Massachusetts General Court in 1722 provided for the raising 
of a certain number of men for a military expedition, direct- 
ing that three hundred of these should be posted at Penobscot 
and the rest at different places on the frontier. The governor 
insisted that by the charter he had the sole direction of mili- 
tary forces; but he was compelled to submit in order to get 
the necessary supplies. 2 Under Governor Shirley, who was 
anxious to keep the assembly in good humor, this tendency to 
dictate in military affairs worked itself out almost without 
restraint and was the cause of serious embarrassment to his 
successor. 3 Thus in 1758 the House, following precedents 
established under Shirley, undertook in voting pay for the 

1 Votes of Pennsylvania, iv. 717. 

2 Hutchinson, History of Massachusetts, ii. 252. 
8 Ibid,, iii. 66. 



190 ENCROACHMENTS OF THE ASSEMBLY. 

forces on the frontier to specify the number of men to be 
employed at each point. Governor Pownall declared this an 
infringement of his rights under the charter; but he finally 
gave his assent under protest, declaring that he did so only 
on account of the pressing necessity of the situation. 1 

Of the second class of encroachments, namely, of the prac- 
tice of controlling the conduct of military operations by com- 
mittees of the assembly or through commissioners appointed 
by the assembly, there is equally good evidence. In 1709 
and 171 1 the New York assembly was allowed to name com- 
missioners to take charge of the commissariat; and, later, 
commissioners of fortifications were appointed in the same 
way. 2 In 1722 the representatives in the provinces of Massa- 
chusetts and New Hampshire passed votes providing for the 
appointment of committees of war to concert plans for the 
conduct of the war and to exercise a certain supervision ; and 
although in each case the plan was then blocked by the oppo- 
sition of the council, yet in 1745 both assemblies appointed 
committees of war, which assumed the management of the 
commissariat. 3 The practice was most general during the 
last French war. The New Jersey military supply acts were 
regularly executed by commissioners named in the acts. The 
home government, it is true, forbade the governor's acceptance 
of such acts, but it was unable to enforce its prohibition. 4 A 
similar course was taken in Pennsylvania, where serious diffi- 
culties arose on one occasion from the failure of the commis- 
sioners to agree with the governor as to the proper course to 
be pursued. 5 With reference to a Maryland bill of the year 

1 Massachusetts Province Laws, iv. 94, 95 ; Hutchinson, History of 
Massachusetts, iii. 66-67. For New York, see Chalmers, Revolt, ii. 229- 
232; New York Documents, vi. 616. For South Carolina, see Cooper, 
Statutes, iii. 179. 

2 Chalmers, Revolt, i. 361-362, 367, ii. 224-228. 

3 Hutchinson, History of Massachusetts, ii. 257, 370 ; New Hampshire 
Provincial Papers, iv. 49, 325, v. 293, 329. Cf. the action of the New 
Jersey assembly in 1740, New Jersey Documents, vi. 99. 

4 New Jersey Documents, ix. 154, 158, 170, 225. 

5 Votes of Pennsylvania, iv. 717; Historical Review of the Constitution 
and Gov ermnent of Pennsylvania (1759), 440-44 1 * 



COMMITTEES OF WAR. 191 

1757, the governor declared that according to its provisions 
the troops were to be " under the Command of no Body but 
the Agents," who were appointed by the assembly. 1 

Nowhere was this policy carried farther than in Massachu- 
setts and New Hampshire. In Massachusetts a committee 
was appointed by the General Court to consider projects for 
carrying on the war, with instructions to report to the 
assembly; another was named to take charge of provisions and 
other supplies. A committee of war consisting of five mem- 
bers was also chosen, to sit at or near Albany and to follow 
instructions from the General Court "for the more effectual 
carrying into Execution the intended Expedition against Crown 
Point." 2 Similar action was taken in New Hampshire, where 
perhaps the most extreme measure was that adopted in 1756, 
when agents were appointed to repair to Albany and to trans- 
act there any affairs relating to the expedition, following 
"such Instructions as they may Receive from time to time 
from the Generall Assembly." 3 

Finally, the assembly was disposed to interfere with the 
discipline of the army in the matter of appointment and 
removal of officers. An indication of this tendency has already 
been seen in the appointment of special commissioners by 
acts of assembly, which sometimes appointed paymasters and 
commissaries, and apparently such officers as chaplains and 
surgeons. 4 It did not often, if ever, claim the right directly 
to appoint military officers in the strict sense of the term, but 
it sometimes interfered seriously with the discipline of the 
troops by attempting to enforce the removal of such officers. 
Thus in 1722 the Massachusetts assembly summoned the com- 
manding officer of the army to appear before it and explain 
why certain orders voted by the House had not been executed ; 

1 Maryland Archives, ix. 100. Cf. Bacon, Laws of Maryland, 1756, 
ch. 5. 

2 Massachusetts Province Laws, iii. 940-963. 

8 New Hampshire Provincial Papers, vi. 368-371, 506-520. For a 
somewhat similar case in Virginia, see Hening, Statutes, vi. 524, vii. 13. 

* Chalmers, Revolt, i. 361-362, ii. 229-232; New York Documents, vi. 
616; New Jersey Documents, ix. 225; New Hampshire Provincial Papers, 
v. 296, 299-300, 376, 438, vi. 368-371, 37& 



192 ENCROACHMENTS OF THE ASSEMBLY. 

and it finally compelled his discharge by refusing to vote hisl 
pay. 1 The South Carolina assembly passed a very extreme! 
measure in 1721, by appointing Indian commissioners, who! 
among other duties were to inspect forts and garrisons and to 
give any necessary orders for the reform of abuses. The 
military officers were bound to carry out orders of this kind;' 
and if they failed to do so, the commissioners were empowered 
to suspend them and to make temporary appointments in their 
places. 2 

From these facts it is clear that in military affairs the 
assembly had seriously encroached upon the governor's pre- 
rogative. Indeed, this statement of the evidence gathered 
from the practice of the different provinces may be summed 
up with the remark of the historian Chalmers in regard to the 
conduct of the last of the French wars: "The king's repre- 
sentative acted merely as the correspondent of his ministers. 
The war was conducted by committees of assembly." 3 

In regard to the interference of the assembly with external 
relations a few words will suffice. These external relations, 
it will be remembered, were chiefly of two kinds, — inter- 
colonial interests and Indian affairs. As to questions arising 
between the colonies, it may be said that the appointment by 
the assembly of commissioners to deal with boundary disputes 
is frequently recorded by nearly every colony, and was finally 
sanctioned in some cases by the authority of the crown itself. 4 
In regard to relations with the Indians, the assembly showed 
a similar disposition to assert its control, as a few illustrations 
taken almost at random will sufficiently indicate. In 1722 
the Massachusetts House voted that the speech to be made 
by the governor at a meeting with delegates of the Iroquois 
nation should be spoken in the name of the assembly, and 
that the House of Representatives should be present. The 
governor at first refused, but he was finally obliged to submit. 

1 Hutchinson, History of Massachusetts, ii. 254-260, 265-266. 

2 Cooper, Statutes, iii. 142; cf. 230, 329, 333. 

3 Revolt, ii. 300-301. 

4 See above, p. 109, and Allinson, Acts of Assembly, ch. 396. 



WEAKENING OF THE EXECUTIVE. 1 93 

The House had in the first place proposed that the speech 
should be composed by a joint committee of the two houses; 
and although this was not done, yet the speech was actually 
submitted to the assembly for its approval. 1 Again, in 1723, 
the House is found sending instructions to the commissioners 
appointed to confer with the Five Nations at Albany. 2 In 
South Carolina and Pennsylvania Indian commissioners were 
appointed by the assembly. 3 In 1755 the South Carolina 
assembly voted that the governor and council should take the 
counsel of several members of the assembly in their negotia- 
tions with the Creeks. 4 

It has now been seen, perhaps in wearisome detail, to how 
great an extent the assembly had in various ways encroached 
upon essentially executive functions of the governor. These 
usurpations, or whatever else they may be called, probably 
reached their height during the last of the Indian wars, when 
the pressure upon the governors was of course stronger than at 
any other time. It is probable, however, that if the political 
development of the colonies had not been in a sense inter- 
rupted by the events of the revolutionary period, the assem- 
blies would have made even greater advances. Already indeed 
in some of the provinces the governor's power had been re- 
duced within very narrow limits. Governor Glen's statement 
in regard to South Carolina, to the effect that the executive 
power was very largely in the hands of commissioners appointed 
by the assembly, applies fairly well to Pennsylvania also. 5 
In regard to the Massachusetts government the Board of Trade 
wrote in 1757: "Almost every act of executive and legisla- 
tive power, whether it be political, judicial or military, is 
ordered and directed by Votes and Resolves of the General 

1 Hutchinson, History of Massachusetts, ii. 254. 

2 House Journal, 1723, pp. 5-8. 
8 See above, pp. 187, 188. 

4 Cooper, Statutes, iv. 19. In 1758 the Maryland assembly appointed 
agents to provide presents for the Indians, though the money was to be 
expended only with the approval of the governor. See Bacon, Laws of 
Maryland, 1758, ch. 1. 

5 South Carolina Historical Society, Collections, ii. 303. 

13 



194 ENCROACHMENTS OF THE ASSEMBLY. 

Court, in most cases originating in the House of Representa- 
tives." 1 A similar statement in regard to New York was made 
by the Board in 1 752.2 Even at the close of Queen Anne's 
reign, Chalmers said of the New York government that it 
" was really changed ; from being monarchical, it had already 
become democratical." 3 

Without undertaking to pass a final judgment upon the 
policy of the assembly or the opposition of the home govern- 
ment, some conclusions may fairly be drawn. In the first 
place, it is clear that such a policy was not likely to bring 
about the most effective administration of public affairs, 
involving, as it did, the practical breaking off of large or small 
fragments of the governor's prerogative, some of which were 
given either to committees of the assembly or to the assembly 
itself, and others to officers more or less responsible to the 
assembly. The policy, it is true, accomplished the end which 
it had in view, namely, the weakening of the governor, who, 
if not personally an object of distrust and suspicion, was at 
least looked upon as the representative of interests at variance 
with those of the colonies. Certainly, however, the result 
was a system of administration far from ideal. There was no 
concentration of responsibility, no unity of administration; 
and yet whether these evils were any greater than those which 
would have grown up, which indeed had already made them- 
selves felt, under the old system contemplated by the com- 
mission and instructions, is a question not to be hastily 
decided. 

Though it be admitted that any lack of administrative 
efficiency was more than made good by the enforcement of the 
principle of popular control over the executive, yet the fact 
must be recognized that the system was intrinsically corrupt, 
corrupt not only in its immediate results but in the vicious 
traditions which were left behind. This influence was mani- 
fest in the first constitutions of the independent States, as 

1 Board of Trade to Governor Pownall, Dec. 8, 1757, Massachusetts 
Province Laws, iv. 95-96. 

2 Chalmers, Revolt, ii. 255. 
8 Ibid., 53. 



VICIOUS TRADITIONS. 1 95 

shown in the very general distrust of the executive expressed 
in those instruments, in the tendency to make the governor 
so far as possible dependent upon and subordinate to the 
legislature. 

The experience of a few years, however, proved the folly of 
this narrow course. It became evident that jealousy of the 
executive had no place in a system in which the executive as 
well as the legislature was the representative of the people; 
and gradually the vicious traditions of the old regime gave 
way to the sounder principles of the Federal constitution. 



CHAPTER XL 

THE GOVERNOR'S LEGAL AND POLITICAL 
ACCOUNTABILITY: CONCLUSION. 

THE governor's accountability, like his whole official char- 
acter, was two-fold : he was held by legal and administrative 
checks to his accountability to the home government, and by 
various practical and political checks to his responsibility to the 
people of his province. 

His accountability to the crown for the loyal support of 
British and royal interests was enforced by the liability to 
removal for serious violations of his trust. Some of the spe- 
cific penalties attached to breach of particular instructions 
have already been noticed. Another method of enforcing 
responsibility lay in the requirement of bonds for the due 
observance of instructions. Such security was first demanded 
by the crown from the proprietary governments. In Pennsyl- 
vania it was exacted from the governor by the proprietor 
himself. 1 

In addition to these checks, which may perhaps be called 
administrative, the governor had also a certain legal account- 
ability in the courts, though he was answerable only at the 
King's Bench, and not in any court within his province. This 
principle was clearly stated by Chief Justice Mansfield in his 
decision in the case of Fabrigas vs. Mostyn, which came before 
him in 1773. 2 Indeed, as early as 1700 the jurisdiction of the 
King's Bench in case of criminal misconduct on the part of 

1 Above, p. 68; New Jersey Documents, ii. 141, 142; Proud, History of 
Pennsylvania, ii. 182, 188. 

2 He declared that the governor must be accountable in the court of 
King's Bench, for otherwise he could be held to account nowhere. See 
Howell, State Trials, xx. 231. 



LEGAL CHECKS INADEQUATE. 1 97 

colonial governors was defined by act of Parliament. 1 Suits 
for damages might be brought against the governor in the 
same court. 2 Instances of the actual prosecution of gover- 
nors in this way are, however, hard to find. Douglass in his 
"Summary" mentions only two cases of actual trial before the 
court of King's Bench, those of Douglass, governor of the 
Leeward Islands in 17 16, and Lowther of Barbadoes in 1720. 
The only instances found in the old thirteen colonies are 
those of Lord Bellomont, governor of New York at the close 
of the seventeenth century, against whom suit for false impris- 
onment was brought, and Sir William Phips, who was sued for 
illegal interference with a collector of customs. 3 

According to two important witnesses, these legal checks 
were nevertheless very far from giving perfect security against 
misconduct. One testimony, from an official or semi-official 
source, certainly not from the standpoint of a colonist, is a 
report presented through Secretary Stanhope to the Board of 
Trade in 171 5. This writer declares that "on Complaints of 
grievances, and of many great oppressions, which have not 
been done in a Judicial way, and where the proceedings were 
not of record, and consequently could not be proved so fully 
before the King, as in the aforesaid case of Appeals, the 
persons injured meet with unsupportable difficulties and have 
seldom bin relieved on their complaints." 4 The other wit- 
ness is Hamilton, who, in his famous speech delivered in 
defence of Zenger in the year 1735, based his argument for 
freedom of speech largely upon the fact that other means of 
holding the provincial governor to his accountability were 
ineffective. "We are indeed told," said he, "and it is true 
they are obliged to answer a suit in the king's courts at 
Westminster, for a wrong done to any person here : But do we 

1 Statutes at Large, 11 & 12 Will. III. c. 12. 

2 See case of Fabrigas vs. Mostyn, in Howell, State Trials, xx. 81. 

8 For Douglass and Lowther, see Douglass, Summary, i. 217. The case 
of Bellomont is cited by Mansfield in his decision in the case of Fabrigas 
vs. Mostyn (Howell, State Trials, xx. 217-218, 232). The decision of 
Mansfield referred to arose in Minorca, and at the very end of our colonial 
era. For Phips, see Hutchinson, History of Massachusetts, ii. 74-75, 82. 

4 North Carolina Records, ii. 161-163. 



198 THE GOVERNOR'S ACCOUNTABILITY. 

not know how impracticable this is to most men among us, to 
leave their families, (who depend upon their labour and care 
for their livelihood) and carry evidences to Britain, and at a 
great, nay, a far greater expence than almost any of us are able 
to bear, only to prosecute a governor for an injury done here ? 
But when the oppression is general, there is no remedy even 
that way." 1 

Since the restraints imposed upon the governor by the 
home government are seen to have been practically inadequate, 
more effective checks must be sought within the province. 
It is true that one branch of the provincial government, the 
judiciary, was largely ineffective for this purpose, since it 
was too much under the control either of the crown or of the 
governor, and was therefore not sufficiently representative of 
public opinion. This public opinion of the province was 
after all the strongest restraining influence upon the gover- 
nor; to it, indeed, even the royal administrative control owed 
a large share of such efficiency as there was in the system. 
Of course the great organ of public opinion was the provincial 
assembly; and yet, underlying the need of an organic embodi- 
ment of public opinion, there is a need yet more necessary 
and fundamental, — the necessity of a free and open inter 
change of ideas on political subjects, of freedom to criticise 
the acts of any public officer, even the highest. In times like 
those of the colonial era, when redress from the home govern- 
ment could be had only with difficulty, when judges were sub- 
servient, when even assemblies might be corrupted, this was the 
last resort, the only ground of hope for a sound political life. 

In the early years of the colonial era the right of free speech 
was not always well guarded. There was frequent legislation, 
for example, against "seditious utterances," a term which 
might mean almost anything. In 1639 the Maryland assembly 
passed an act for "determining enormous offences," "among 
which were included "scandalous or contemptuous words or 
writings to the dishonour of the lord proprietarie or his lieu- 
tenant generall for the time being, or of any of the council. " 2 

1 Howell, State Trials, xvii. 707. 

2 Bozman, History of Maryland, ii. 603. 



FREEDOM OF SPEECH AND OF THE PRESS. 1 99 

By a North Carolina act of 171 5 seditious utterance against 
the government was made a criminal offence, and in 1724 
Joseph Castleton, for malicious language against Governor 
Burrington and for other contemptuous remarks, was sentenced 
by the General Court to stand in the pillory for two hours and 
on his knees to beg the governor's pardon. 1 A New Jersey 
act of 1675 required that persons found guilty of resisting the 
authority of the governor or councillors "either in Words or 
Actions ... or by speaking contemptiously, reproachfully, 
or maliciously, of any of them," should be liable to fine, 
banishment, or corporal punishment at the discretion of the 
court. 2 In Massachusetts even during the eighteenth century 
the right of free political discussion was denied by the House 
of Representatives as well as by the royal governor, though 
often unsuccessfully. 3 

The history of the liberty of speech and of the press in the 
colonies does not lack its causes ce'lebres. One of the most 
striking is that of Nicholas Bayard in 1702. Under a statute 
declaring that persons endeavoring " by force of arms, or 'other 
ways, to disturb the peace, good, and quiet of this their majes- 
ties' government, as it is now established," should be deemed 
rebels, Bayard, on a warrant of the governor and council, was 
committed on a charge of high treason. The grand jury, 
which was said to have been packed, brought in an indictment 
charging the prisoner with circulating, particularly among the 
soldiers, libels declaring the existing government oppressive, 
and thus inciting the king's subjects "to disown the present 
authority." These alleged libels were embodied in an address 
to Lord Cornbury, the newly-appointed governor, who had not 
yet arrived in the province, — a course of action on Bayard's 
part which was held to be in contempt of the governor then 
in office, — in a second address to the king and in a third to 
the House of Commons. 

The trial took place before commissioners who were specially 

1 Iredell, Laius of North-Carolina, 17; North Carolina Records, ii. 546. 

2 Learning and Spicer, Grants, Concessions, etc., 99. Cf. Ibid., 77. 

8 See on this subject, C. A. Duniway, History of Restrictions upon the 
Freedom of the Press in Massachusetts, chs. 3, 4. 



200 THE GOVERNOR'S ACCOUNTABILITY. 

appointed for the purpose by the governor, and who through- 
out the trial displayed a marked bias against the prisoner. It 
was claimed that the jury was packed. According to some of 
the most damaging charges preferred by the prosecuting wit- 
nesses, Bayard had asserted that " the hottest and ignorantest of 
the people were put into places of trust," and that the assembly 
had given the governor money to induce his approval of cer- 
tain bills. In the course of the trial one of the commissioners 
even made the astonishing statement that it might be a crime 
"to petition the House of Commons in the plantations, where 
the king governs by prerogative." On such charges Bayard 
was found guilty, and was sentenced to be hung, drawn, and 
quartered. This extreme sentence was not carried out, how- 
ever; with difficulty he obtained a reprieve, and on Cornbury's 
arrival the attainder was reversed by an act of assembly, which 
was confirmed by Queen Anne. 1 

Another method of restraining the liberty of public speech 
has already been noticed in the unsuccessful attempt to give 
to the governors a censorship of the press. 2 Apart from these 
extreme methods, an attempt was also made to curb the expres- 
sion of political opinions by the application of the law of libel. 
The classic illustration of this class of efforts is the case of 
John Peter Zenger, who was tried for publishing a libel against 
Governor Cosby of New York. 3 Lewis Morris, chief justice 
of the Supreme Court, had rendered a decision unfavorable to 
the governor in a suit involving the latter' s salary. Cosby 
thereupon removed Morris and appointed a new chief justice, 
De Lancey, who, as associate justice, had dissented from the 
opinion rendered by Morris. Morris then wrote several papers 
criticising the governor's course, which were published in 
Zenger' s "Journal." These the governor straightway de- 
nounced as false and scandalous libels ; whereupon Chief Jus- 
tice De Lancey charged the grand jury, dwelling Upon the 

1 See the report of the case in Howell, State Trials, xiv. 471. Cf. 
Chalmers, Opinions, 340 ; Smith, History of New York (1776), 141-144. 

2 See above, p. 127. 

8 For an earlier case in Maryland, see Hamilton's speech in the Zenger 
trial (Howell, State Trials, xvii. 717). 



THE Z EAGER TRIAL. 201 

peculiar danger of libels on the governor, arguing that they 
endangered the peace and created a distrust of government; 
but the jury failed to respond to his appeal. The council then 
sent a message to the House of Representatives urging that 
body to take action ; but the House laid the message on the 
table. The council then ordered that the papers should be 
burned; Zenger was arrested on an order of the governor and 
council; and an unsuccessful effort was made to pack the jury. 
Andrew Hamilton of Pennsylvania, the leading colonial lawyer 
of the time, undertook the defence without any retainer. 

The issues were drawn very distinctly. The prosecuting 
attorney argued that government was a sacred thing; that if 
persons high in office were exposed to censure by private indi- 
viduals, government could not maintain itself. Hamilton, on 
the other hand, rested his argument for the defence largely on 
the principle that falsity is necessary to constitute a libel. 
The court refused to admit the question of truth; whereupon 
Hamilton made his appeal to the jury with a strong argu- 
ment for free criticism as the only safeguard against abuses in 
government. This appeal won the day, and the prisoner was 
discharged. 1 The outcome of this case had a marked influence 
in other colonies. It is true that in 1768 Chief Justice Hutch- 
inson, in his charge to the grand jury, urged action on certain 
articles reflecting upon the governor's conduct which were 
published in the "Boston Gazette"; but the grand jury 
ignored the suggestion. 2 

It is no exaggeration to say that without at least partial 
freedom of speech and of the press the restraining influence of 
the representative system upon the governor would have been 
impossible. In the face of open public criticism, the gov- 
ernor could no longer secure the election of representatives 
who would carry out his policies without question. Subser- 
vient representatives knew that they would have to face the 

1 On this whole affair, see the report of the case in Howell, State Trials, 
xvii. 675, and the letter of Governor Cosby to the Lords of Trade, New 
York Documents, vi. 4. 

2 Quincy, Massachusetts Reports, 262 seq. 



202 CONCLUSION. 

wrath of their constituents, whereas opposition to the gover- 
nor might be one of the shortest roads to popularity. 

Furthermore, the free expression of public opinion in the 
press and in the assembly had an important result in strength- 
ening the efficiency of the English system of control. The 
public sentiment of the colony was thus enabled to make 
itself felt not only by the governor but also by those au- 
thorities to which alone the governor was strictly and legally 
accountable. Indeed, the assemblies, through their regularly- 
appointed agents, came to have a very considerable influence in 
London, and were sometimes even strong enough to secure 
the recall of obnoxious governors. 1 The name of Benjamin 
Franklin will at once suggest itself as that of the most suc- 
cessful, or at least the most eminent, of these representatives 
of colonial opinion. 

This study of the provincial governor may be properly 
closed by a brief survey of the main conclusions which have 
been, reached. 

The royal or provincial government was not a system which 
came full-armed into existence at the beginning of our colo- 
nial history, but it had been preceded by other systems, among 
which it had gained a place which gradually became the 
dominant one. Direct control by the crown, for example, had 
been preceded by various arrangements under which govern- 
ment was left in the hands of private persons or of corpora- 
tions. Again, the ultimate form of the executive in the royal 
provinces, that of a governor checked by an executive council, 
had been preceded by experiments, now with a collegiate 
executive, or again with a single head unchecked by any 
council. The powers of the governor had also gradually un- 
dergone important limitations, as is shown by comparing the 
elaborate instructions of later days with the brief, indefinite 
grants of power which had gone before them. In a word, the 
old confusion of functions had been forced to give way to a 
partial separation of powers. In the provincial governments, 
then, — a term including proprietary as well as royal govern- 

1 See above, p. 51. 



CONCLUSION. 203 

ments, — the executive finally took the form of a governor 
appointed either by the crown or by the proprietor as the case 
might be, checked and assisted by an executive council ap- 
pointed commonly on the governor's recommendation. 

The governor's powers and duties were defined by a great 
variety of instruments, of which the most important were the 
commission and instructions, issued either by the crown or 
by the proprietor. These instruments were modified to an 
important extent by the local usages of the different provinces. 
The main outlines of the governor's office were determined by 
his vice-regal character: as the representative of the king, he 
succeeded with certain inevitable limitations to the powers of 
the royal prerogative. He was in the first place invested with 
certain powers which may be regarded as essentially executive, 
such as the command of the military, the determination of 
questions of war and peace within narrow limits, the repre- 
sentation of the colony in its external relations, the appoint- 
ing power, a certain limited control of provincial finance, and 
finally the power of pardon. 

The governor also stood in close and important relations 
with the other departments of the provincial system, the judi- 
ciary and the legislature. Over the former branch he exercised 
a strong influence through his right of appointing judges and 
through a limited control of the provincial courts; further- 
more, with the council he was in most of the colonies himself a 
part of the judicial system, whose independence and consequent 
value as a check upon the executive were seriously impaired. 
Over the assembly, too, the governor had very considerable 
influence. He had generally its very existence in his hands ; 
in most provinces he might determine its sessions at will; its 
upper house was a body of men chosen for the most part on 
his recommendation, and he had also in his power of distrib- 
uting patronage a very important instrument for undermin- 
ing the independence of the representative house ; finally, he 
was himself, through his power of approving or vetoing the acts 
of the assembly, a part of the legislature of the province. 

On the other hand, the assembly through its mere existence 
as a critical body was the organized expression of the public 



204 CONCLUSION. 

opinion of the province, and through its power over the purse 
was able to control the governor's action to an extent which 
more than counteracted the measure of power which he pos- 
sessed over the assembly. In this control of the financial situa- 
tion the assembly had a formidable weapon, which it used not 
merely as an instrument of security against abuse of execu- 
tive power, but also as a means of extorting from the governor 
important powers properly belonging to the executive. The 
result was that in some of the colonies a very large share of 
the executive power fell into the hands of the assembly or 
of their appointees. 

But the governor was more than the head of a local system : 
he was also the agent of the crown, bound to maintain its 
interests; he was the regular medium of communication be- 
tween the colonies and the home government, and the executor 
of acts of Parliament relating to the colonies. Naturally this 
double nature of the office was often the source of serious 
embarrassment when royal or British interests came into con- 
flict, />r apparent conflict, with the interests of the province. 

The governor had also a double responsibility, owing a legal 
and official accountability to the home government, and a 
moral and practical one to the people of the province and their 
representative, the assembly. The first obligation was imper- 
fectly enforced by judicial and administrative processes; the 
second was more effectively secured by the hold of the as- 
sembly on the public purse. 

Throughout this study the conflict of opposing principles 
has been apparent. In the first place, there was the inevi- 
table conflict between legislative and executive departments, 
marked by the almost universal tendency of the legislature 
first to check and finally to usurp executive powers. This 
issue was complicated by the conflicts between two other pairs 
of opposing principles. The governor, as the representative 
of the monarchical idea, stood over against the assembly, which 
represented the people. Finally the governor, as the agent of 
the crown and therefore the representative of imperial or per- 
haps more accurately British interests, came in conflict with 
the assembly which embodied the local forces, the local in- 



CONCLUSION. 205 

terests of the province, and sometimes at least broader colonial 
or American interests. In all of these contests the governor 
stood for a losing cause. 

Rightly then to understand the deeper forces which pro- 
duced the war of independence, one must understand the 
gradual growth of that sense of divergent interests without 
which all the political agitation of Samuel Adams, the elo- 
quence of Patrick Henry, and even a few injudicious meas- 
ures of British statesmen from 1760 to 1774, could hardly 
have led to revolution. Nowhere can this gradually awaken- 
ing consciousness of divergence, so far as it reveals itself prior 
to what is commonly called the revolutionary era, be better 
studied than in the conflicts between the provincial governor 
and the provincial assembly. It is the significance of these 
issues which has given to this study its chief importance. 
The questions involved are not of merely antiquarian or 
temporary or local interest: they are vital, permanent, and 
fundamental. 



APPENDICES. 



APPENDIX A. 

REPRESENTATIVE COMMISSIONS AND INSTRUCTIONS. 

i. COMMISSION TO SIR THOMAS WEST, LORD LA WARR, 
AS GOVERNOR OF VIRGINIA, 1610. 

[From Whitelocke Papers, vol. i. No. 38 ; printed in Alexander Brown, Genesis of 

the United States, i. 375.] * 

The Coppie of the Commission granted to the right honorable 
Sir Thomas West, Knight, Lord La Warr. 

3T0 all unto whome theis presents shall come, We the Lords and others 
of his Majesties Councell for the Company of Adventurers and Planters 
of the first Collonie in Virginia, resident in England, and We the Treas- 
urer and Companie of the said Adventurers do send greeting in our Lord 
God Everlasting. — 

Whereas the King's most royall Majesty, that now is, by his Highnes 
Letters Pattents under the Great Seale of England, bearing date at 
Westminster the three and twentith day of May now last past, before 
the date of these presents, hath given unto us his Majesties said Coun- 
cell full power and authority as well at this present tyme as hereafter 
from tyme to tyme, to nominate make constitute ordaine and confirme 
by such name or names, stile or stiles as to us his Majesties said Coun- 
cell shall seeme good, and likewise to revoke discharge, change and alter 
all and singular Governors, Officers, and ministers, which have been 
made, as also, which should be by us his Majesties said Councell there 
after thought fitt and needfull to be made and used for the Government 
of the said Collonie and Plantation, and the same at all tymes thereafter 

* Reprinted by permission of the author and Messrs. Houghton, Mifflin and 
Company. 



208 APPENDIX A. 

to abrogate, revoke or change, not only within the precincts of the said 
Collonie but also upon the seas in going and coming to and from the 
said Collonie, as we the said Councell in our discretions shall thinke to 
be fittest for the good of the Adventurers and Inhabitants there. 

And Whereas his Majestie by his said Letters Pattents hath declared 
that for divers reasons and considerations him thereunto especially move- 
ing, his will and pleasure is, and by his said letters patents he hath 
ordained, that immediately from and after such tyme that any Governor, 
or principall Officer so to be nominated by us his Majesties said Coun- 
cell for the government of the said Collonie aforesaid, shall arrive in 
Virginia and give notice unto the Collonie there resident of his Majesties 
pleasure in this behalf, the Government, power and authoritie of the 
President and Councell then to be there established and all Laws and 
Constitutions by them formerly made shall utterlie cease and be deter- 
mined, and all officers, Governors and ministers formerlie constituted or 
apointed shalbe discharged anything in any of his Majesties Letters Pat- 
tents concerning the said Plantation contained in anywise to the contrary 
notwithstanding. 

And Whereas, also his said Majestie by his said Letters Pattents hath 
ordained and graunted that such Governers, officers and ministers as by 
us his Majesties said Councell shall be constituted and apointed, accord- 
ing to the natures and limitts of their severall offices and place respec- 
tivelie should and might from tyme to tyme forever thereafter, within the 
precincts of Virginia or in the way by the sea thither and from thence, 
have full and absolute power and authoritie to correct, punish, pardone, 
governe and Rule, all such the subjects of his Majestie, his heirs and 
successors in any voyage thither, or that should at any tyme there inhabite 
in the precincts and Territorie of the said Collonie, as is aforesaid, 
according to such ordinances, orders, directions, constitutions and In- 
structions, as by us his Majesties said Councell for the tyme being shalbe 
established, and in defect thereof in case of necessitie according to the 
good discrecions of the said Governors and Officers respectively, as well 
in cases Capitall and Criminall as civill, both Marine and others, so all- 
waies as the said statutes, ordinances and proceedings as neere as con- 
venientlie maybe, be agreeable to the Laws, Statutes, Government and 
Policie of this his Majesties Realme of England. 

And Whereas likewise his said Majestie hath by his said Letters Pat- 
tents, graunted, declared and ordained that such principall Governors as 
from tyme to tyme should dulie and lawfullie be authorized and appointed 
in manner and forme as by the said Letters Pattents be expressed, should 



COMMISSION TO LORD LA WARR. 209 

in cases of Rebellion and Muteny have power and authoritie to use and 
exercise Marshall Law in as large and ample manner and forme as his 
Majesties Lieftenants in his highnes counties within the Realme of Eng- 
land, have or ought to have, by force of their Commissions of Lieftenan- 
cie, as in and by the said Letters Pattents amongst other things in them 
contained more at large doth and may apeare. 

Now Know yee that We his Majesties said Councell upon good 
advise and deliberation and upon notice had of the Wisedome, valour, 
circumspection, and of the virtue and especiall sufficiencie of the Right 
Honourable Sir 'Thomas West, Knight Lord La Warr to be in princi- 
pall place of authoritie and Government in the said Collonie, and finding 
in him the said Lord La Warr propensness and willingness to further and 
advance the good of the said Plantation, by virtue of the said authoritie 
unto us given by the said Letters Pattents have nominated, made, or- 
dained and apointed and by these presents do nominate make ordaine and 
apointe the said Sir Thomas West, Knight Lord La Warr to be principall 
Governor, Commander and Captain Generall both by Land and Sea over 
the said Collonie and all other Collonies planted or to be planted in Vir- 
ginia or within the li mitts specified in his Majesties said Letters Pattents 
and over all persons, Admiralls Vice-Admiralls and other Officers and 
Commanders whether by sea or land of what quallitie soever for and dur- 
ing the term of his natural life, and do hereby ordaine and declare that 
he the said Lord La Warr during his life shall be stiled and called by the 
name and title of Lord Governor and Captain General of Virginia and 
of the Collonie and Collonies there now planted or to be planted, and do 
by these presents revoke and change all and all manner of former con- 
stitutions, ordinancies, apointments and authorities by us his Majesties 
said Councell or any of us given, made, nominated, constituted or- 
dained or apointed to any to be President, Chief Governor or principal 
Officer in Virginia aforesaid or to use or exercise the authority jurisdic- 
tions or offices herein limitted graunted or apointed or mentioned to be 
graunted or apointed to the said Lord La Warr and of and from the same 
and everie of them do hereby discharge all and everie persone and per- 
sones heretofore authorized, nominated or apointed to use execute or 
exercise the same or any of them and that the said Lord La Warr, Lord 
Governor and Captain Generall as is aforesaid in all cases of Rebellion 
and Mutenie happening or which shall happen, either within the pre- 
cincts of Virginia limited or specified in his Majesties said Letters Pat- 
tents or in the present intended passage and expedition thither, shall 
have such power and authoritie to use, exercise and put in execution 

14 



210 APPENDIX A. 

Marshall Law as in the said Letters Patterns is mentioned, and upon all 
other cases as well Capitall as Criminall and upon all other accidents and 
occasions there happening, to rule, punish, pardone and governe accord- 
ing to such directions orders and instructions as by his Majesties said 
Councell, or the greater part thereof here resident in England shall from 
tyme to tyme, be in that behalf made and given with the consent of 
Henrie Earle of Southampton, William Earl of Pembroke, Philip Earle 
of Mountgomerie, Robert Lord Viscount Lisle, Theophilus Lord Howard 
of Walden, Edmond Lord Sheffield and George Lord Carew, or any two 
of them, and in defect of such informations he the said Lord Governor 
and Captain Generall shall and may rule and governe by his owne dis- 
cretion or by such lawes for the present government as he with such 
councell as he shall take unto him, or as he the said Lord Governor 
and Captain Generall shall think fitt to make and establish for the ad- 
vancement of the publique weale and good of the said Collonie with 
as full and absolute power authority and commaund as either we by 
virtue of his Majesties said Letters Pattents have power to derive and 
graunt to him or as he the said Lord Governor and Captain Generall 
by his Majesties said Letters Pattents in any sort is authorized to use 
and exercise. 

And Further Know yee that we his Majesties said Councell by 
these presents as much as in us lieth do give and graunt full power 
and authoritie to the said Lord Governor and Captain Generall, of his 
free will and pleasure to call unto his assistance and to choose for 
Councellors such and so many persons of the said Collonie now planted 
in Virginia or hereafter to be planted there as he shall think fitt and 
meete, and to displace such from being Councellors whose demerit he 
shall conceive to give cause thereof. And likewise to place for Coun- 
cellors and Officers such persons as he from tyme to tyme during his 
government there shall think fitt. And also at all tymes at his will and 
pleasure, to discharge, displace and put from the execution of all, every 
or any such Officer or Officers as he shall think meete, such personns as 
now be there in office, or which shall hereafter be in any office in the said 
Collonie now planted or hereafter to be planted in Virginia during his 
life as he the said Lord Governor and Captain Generall shall deeme 
worthie to be displaced or put from any such his office or place, which 
any such person doth or shall so hould : The Office of Lieftennant Gov- 
ernor, Marshall, Admirall and Vice-Admirall, and all governors of Prov- 
inces and Townes which shalbe made or constituted by us, the said 
Councell resident here in England, allwaies excepted, which said officers 



COMMISSION TO LORD LA WARE. 211 

and governors so excepted, it shall and may nevertheles be lawfull to 
and for the said Lord Governor and Captain Generall to suspend and 
put from the execution of all and everie their said office and offices and 
governments, and others in their places, offices and governments to con- 
stitute and apoint at his pleasure, untill further order shalbe therein taken 
by us his Majesties said Councell resident here in England. And in 
like manner we his Majesties said Councell, Treasurer and Companie do 
by these presents as much as in us lieth, give and graunte full power and 
authoritie to the said Lord Governor and Captain Generall at his will 
and pleasure from tyme to tyme, and at all tymes hereafter during his 
life, by or with any office or place in Virginia aforesaid, for increase of 
any man's person, by bill of adventure for land, onelie not to exceede a 
four fould proportion of the first rate of his adventure, or of the Office 
which he shall beare, unless the same be by expresse consent of the said 
Councell and Companie, here resident, of Virginia and under their Seale, 
to reward and recompense the good and well deservinge of any person 
or personns what soever under his Government according as he the said 
Lord Governor and Captain Generall shall in his wisedome and discre- 
tion think such persons to have merited and deserved. To have, hould, 
use and exercise the stile and title of Lord Governor and Captain 
Generall of Virginia and all other the jurisdictions, powers and authori- 
ties aforesaid, to him the said Sir Thomas West, Knight, Lord La Warr, 
for and during the tearme of his naturall life, without any revocation or 
restraint by us the said Councell or any of us in any wise to be made 
otherwise than before is excepted : — 

And Know yee further that we his Majesties said Councell have 
made, ordained and constituted and by these presents do make, ordaine 
and constitute the said Lord La Warr, Admirall of the whole Fleete of 
such shipps and other vessels as are apointed and by the Grace of God 
shall be imploied and passe in this present intended expedition to Vir- 
ginia aforesaid, giving him the said Lord La Warr full power and au- 
thorise to exercise and put in execution in all cases and upon all 
occasions and accidents, upon all persons passing in the said Fleete 
full and absolute power, authoritie and command in this behalf as by 
his Majesties Letters Pattents we or any of us, have power to derive and 
graunt unto him : And for the more securitie and safetie as well of the 
said Fleete in their present passage as of the said Collonie and Planta- 
tion We his Majesties said Councell by virtue of the authoritie unto us 
in this behalf given or graunted Do hereby give full power and authoritie 
to the said Lord La Warr, at all tymes during his naturall life, to en- 



212 APPENDIX A. 

counter, expulse, repell and resist by force of Arms, and by all wayes 
and meanes whatsoever, all manner of persons that shall at any time 
either by sea or land, enterprise or attempt the destruction, invasion, 
hurt, detriment or anoyance of the said Fleete, Collonies, or Planta- 
tion. We also hereby and in his Majesties name strictlie command and 
require, all and everie person and persons now inhabiting or which 
shall hereafter inhabite within the precincts of the said Collonie, and 
which shall passe in the said Fleete thitherward, in all things and upon 
all occasions, to yield unto the said Lord Governor and Captain Generall 
all due honour and respect, and dulie and willinglie to obey and execute 
the directions and commands of the said Lord Governor and Captain 
Generall according to the authoritie to him limited and given, as also to 
be unto him upon all occasions, to their powers and habilities, aiding 
and assisting, as they will to their utmost perills answere the contrary. 

And Lastlie We his Majesties said Councell for us, and We the said 
Treasurer and Companie respectivelie, by these presents as much as in 
us or any of us lieth or shalbe, do respectivelie promise and graunt to 
the said Lord La Warr, Lord Governor and Captain Generall of Vir- 
ginia, that if it shall hereafter apeare to his Lordship that it shall be meet 
for him to have any other Articles or Clauses to authorise him more 
then in these premises is mentioned, to rule, governe, do or execute any 
Act or Acts, thing or things, which may tend to the furtherance or bene- 
fite of the said Collonies or Plantations, or the good government thereof, 
or the rewarding of any persons as aforesaid, that then upon notice 
thereof and request made by or from his Lordship : to us the said 
Councell, Treasurer and Companie, and the successors of us the said 
Councell, Treasurer and Companie, for the tyme being, We his Majes- 
ties said Councell, Treasurer and Companie for the tyme being, shall 
and will, from time to tyme do our utmost Indeavour and as much as in 
us or any of us lieth, by graunt or otherwise to enlarge the same and to 
satisfie his Lordships reasonable desire therein. And lastlie, we his 
Majesties said Councell do condescend and agree, to and with the said 
Sir Thomas West, Knight, Lord La Warr, that in cases of necessitie, or 
upon any other occasion which shall happen, he may withdraw himself 
from being resident with or in the said Collonie or Collonies in Virginia 
and that it shall and may be lawfull to and for him the said Lord La 
Warr, to nominate, make, constitute, depute and apoint, such person or 
persons as he shall think meet to be his Deputie or Deputies and Lief- 
tennant Governor in his absence to rule and governe the said Collonie 
and Collonies in Virginia, for, by and during the space of one whole 



COMMISSION TO LORD LA WARR. 213 

year next after the said Lord La Warr his being absent from the Col- 
lonie and his deputing of any person or personns so to be by his Lord- 
ship constituted, deputed or apointed, for no longer tyme, unlesse 
authoritie and further warrant therein shalbe given unto such deputie 
and deputies by and from us his Majesties said Councell, under our 
Councell Seale and sent to him as a warrant for his or their continueing 
Deputie or Deputies or Lieftennant Governor over the said Collonie or 
Collonies : which Deputie or Deputies so to be made, constituted or 
apointed by the said Lord La Warr for the space of such whole yere as 
aforesaid shalbe in the absence of the said Lord La Warr Governor of 
the said Collonie or Collonies, and shall have such power and authoritie 
by and with all our consents, agreements and apointments to do and 
execute all things touching the said Government, as the said Lord La 
Warr shall unto such Deputie or Deputies, assigne, limitt and appoint. 

In wittness wherof we his Majesties said Councell, apointed by his 
Majesties Letters Pattents, for so much in these presents as concerneth 
us and our graunt herein mentioned, by mutuall consent and agreement 
have sett hereunto our hands and the seale of us the said Councell : And 
likewise We the said Treasurer and Company for so much in these pres- 
ents as concerneth us and our graunts herein mentioned, by mutuall 
consent and agreement have hereunto sett the seale of Our Corporation. 

Given at his Majesties cittie of London aforesaid the 28 th day of Feb- 
ruary in the 7 th yere of his Majesties raigne of England, France and 
Ireland and of Scotland the 43. 

Southampton. Pembroke. 

Philip, Mountgomerie. Theophilus Howard. 

Edward Cecill. William Waad. 

Walter Cope. Edward Conoway. 

Thomas Smith. Baptist Hicks. 

dudlie dlggs, robart mansill. 

Christopher Brook. William Romney. 



214 APPENDIX A. 

2. COMMISSION TO SIR WILLIAM BERKELEY AS GOVER- 
NOR OF VIRGINIA, 1641. 

[From Rymer, Fcedera, xx. 484.] 

De Constitutione Gubernatoris 6r* Concilii pro Virginia. 

Charles ■, by the Grace of God, King of England, Scotland, France and 
Ireland, Defender of the Faith, 6°<r. 

To our trusty and welbeloved, 

Sir William Berkeley Knight, one of the Gentlemen of our Privy 
Chamber, 

Sir Francis Wyat Knight, 

yohn West Esquire, 

Richard Kempe Esquire, 

Samuel Matthews Esquire, 

Nathaniel Littleton Esquire, 

Christopher Wormely Esquire, 

William Pierce Esquire, 

Roger Windgate Esquire, 

Joh?\ Hop son Esquire, 

TJiomas Pawlet Esquire, 

George Minify Esquire, 

Henry Brown Esquire, 

William Brocas Esquire, 

Argol Yardley Esquire, 

Thomas Pettus Esquire, 

Thomas Willoughby Esquire, 

Richard Bennet Esquire, 

And Humfrey Higgeson Esquire, Greeting. 

Whereas, by our Letters Patents under our Great Seal of England, 
bearing date the eleventh day of January, in the fourteenth year of our 
Reign, for the better maintenance and government of the Colony and 
Plantation in Virginia, [we] did nominate and appoint the said Sir 
Francis Wyatt Knight, to be the then present Governor thereof, and 
such other persons, as We in and by Instructions under our Sign Manual, 
had then named and assigned, or thenafter should name and assign, to 
be the then present Counsel, of and for the said Colony and Plantation 
of Virginia ; Granting unto him or them, and the greater number of them, 
full power and authority to perform and execute the Places, Powers and 
Authorities, incident to a Governor and Counsel of Virginia respectively, 



COMMISSION TO BERKELEY. 215 

as by the same Letters Patents of Commission, more at large may appear \ 
Which said Commission and all Places, Powers and Authorities, Matters 
and Things thereby granted or mentioned to be granted, We do to all 
Intents and Purposes, fully and absolutely revoke, determine and make 
void by these Presents ; Nevertheless, We being willing to give all en- 
couragement to that Plantation, and minding that our Colony and People 
there, should be regulated as well in Ecclesiastical as Temporal Govern- 
ment, according to the Laws and Statutes of our Realm of England, 
which We purpose to have established there, and being resolved not to 
impeach or hinder, but to promote and advance the particular Interests 
of such of the Planters there, as shall conform themselves as loyal Sub- 
jects, in all due Obedience to our Government, and to discourage such, 
as shall be found Disturbers of the Peace and Impugners of the said 
Colony. 

Know ye therefore, that We for the effecting of the Premisses, and the 
better ordering, governing and managing, of the Affairs of the said Colony 
and Plantation in Virginia, and of the Persons now inhabiting, and which 
shall hereafter inhabit there, until We shall find some more convenient 
means, upon mature Advice, to give more ample Directions for the same ; 
And reposing assured Trust and Confidence, in the Understanding, Care, 
Fidelity, Experience and Circumspection, of you the said 

Sir William Berkeley, 

Sir Fra?icis Wyatt, 
John West, 

Richard Kemp, 

Samuel Matthews, 

Natha?iiel Littleton, 

Christopher Wormley, 

William Pierce, 

Roger Windgate, 
John Hopson, 

Thomas Paulet, 

George Minify, 

Henry Brown, 

Willia?n Br ocas, 

Argol Yardly, 

Thomas Pettus, 

Thomas Willoughby, 

Richard Bennet, 

And Humfrey Higgeson, 



2l6 APPENDIX A. 

Have nominated and assigned, and by these Presents do nominate and 
assign you the said Sir William Berkeley, to be the present Governor, 
and you the said Sir Francis Wyatt,John West, Richard Kemp, Samuel 
Matthews, Nathafiiel Littleton, Christopher Wormeley, William Peirce, 
Roger Windgate, John Hopson, Thomas Paulet, George Minify, Henry 
Brown, William Brocas, Argol Yardley, Thomas Pettus, Thomas Wil- 
loughby, Richard Bennet, and Humfrey Higgeson, to be the present 
Counsel of and for the said Colony and Plantation in Virginia, giving, and 
by these Presents granting unto you and them, and the greater number 
of you and them respectively, full Power and Authority, to perform and 
execute the Places, Powers, and Authorities, incident to a Governor and 
Counsel of Virginia respectively, and to direct and govern, correct and 
punish our Subjects, now inhabiting or being, or which hereafter shall 
inhabit or be in Virginia, or in the Isles, Ports, Havens, Creeks or Ter- 
ritories thereof, either in time of Peace or War, and to order and direct 
the Affairs, touching or concerning that Colony or Plantation, in those 
Foreign Parts only, and to execute and perform all and every other mat- 
ters and things, concerning that Plantation, as fully and amply, as any 
other Governor and Counsel resident there, at any time, within the space 
of ten Years now last past, had or might perform or execute. 

And because, by the experience of industrious and well-experienced 
Men, the limits and bounds of the said Plantation may be augmented, 
and Trade and Commerce, for the maintenance and enriching of the 
Inhabitants there, from time to time residing, much advanced ; Our will 
and pleasure is, and We do by these Presents give and grant unto you 
the said Sir William Berkeley, and the rest of you our said Counsel 
beforementioned, or any four or more of you, (whereof the Governor for 
the time being to be always one) full Power and Authority, to grant one 
or more Commission or Commissions, unto any of our Subjects, address- 
ing themselves unto our said Governor and Counsel, for the discovery 
of the same Country and Ports, Bounds, Limits and Extents thereof; 
And also for the finding out, what Trades shall be most necessary to be 
undertaken, for the benefit and advantage of the said Colony and Plan- 
tation, and the good of the People inhabiting, or which shall inhabit there, 
both by Sea and Land ; And further, upon all occasions as you or any 
four or more of you (whereof you the Governor for the time being to be 
always one) shall see fit, to send out Forces, for the subduing of the In- 
dians and Savages of the said Country ; And likewise to make War and 
Peace with them, in all such cases as may stand with the safety of the 
said Colony and our Honour, keeping always sufficient Forces for the 
holding of the places now enjoyed. 



COMMISSION TO BERKELEY. 217 

And if it shall happen, you the said Sir William Berkley to die, or 
in case of your urgent occasions (allowed by four or more of our said 
Counsel there) shall call you thence at any time, then our Will and 
Pleasure is, and We do hereby give and grant to you the said Sir 
William Berkeley, and the rest of the Commissioners before named, or 
the greater number of you, full Power and Authority, upon the Death or 
in the absence of you the said Sir William Berkeley, to elect, nominate 
and assign one of our said Counsel, to be the present Governor for the 
said Colony and Plantation in Virginia, and so to do from time to time, 
as often as the case shall require ; And We do by these Presents assign 
and appoint, such Person, as by you our said Counsel or the greater 
number of you, from time to time shall be elected and chosen to be the 
present Governor, and the said Governor and the rest of our Commis- 
sioners, to be our present Counsel for the said Colony or Plantation for 
Virginia; Giving and by these Presents granting unto you, and the 
greater number of you respectively, full Power and Authority, to execute 
and perform the Places, Powers and Authorities, of a Governor and 
Counsel of Virginia respectively, in manner and form aforesaid ; Never- 
theless our W T ill and Pleasure is, that you and every of you, from time to 
time proceed, according to such instructions as you or they, do now or 
hereafter shall receive from us, or the Lords and others of our Privy 
Council here ; And that you, our said Governor and Counsel there for 
the time being, shall be from time to time subordinate, subject and 
obedient, to the Lords Commissioners and Committees here for our 
Plantations, for the time being, touching the present Government of that 
Plantation, and according to such Orders and Directions, as they from 
time to time shall conceive and set down. 

Provided always, and our express Will, Pleasure and Commandment 
is, and We do hereby give full Power and Authority unto you the said 
Sir William Berkeley, and such other Person as shall be Governor there, 
for the time being, according to the true intent of these Presents, and 
our intention herein before declared, that upon the death or discontinu- 
ance of any one of our Counsel there, you the said Sir William Berkeley, 
and such other Person as shall be Governor there, and our Counsel there 
for the time being, or the greater part of them, shall elect, nominate and 
appoint, such other sufficient, able and discreet Person or Persons, in 
the room or place of him or them so dying or discontinuing, during 
the continuance of this our present Commission ; And that you shall 
from time to time, return and certify the Names and Qualities of such 
Person or Persons, so by you to be nominated and appointed, in the 



2l8 APPENDIX A. 

room of such of our Counsel, there dying or discontinuing as aforesaid, unto 
Us and the Lords and others our Commissioners for Plantations here, 
to the end, such Person or Persons to be by you and them so elected, 
nominated and appointed, in manner aforesaid, may receive allowance 
or disallowance, of such their election or choice, in the room of such of 
our Counsel there, as shall either die or discontinue, as there shall be 
cause, or to us or our said Commissioners for Plantations here, shall 
seem meet. 

And our further Will and Pleasure is, That you the said Sir William 
Berkeley and Richard Kemp, before you or either of you depart out of 
this our Kingdom of England, shall take such Oaths, before the Lord- 
Keeper, Lord Privy Seal or either of them, for this our Kingdom, as the 
Governor and Counsel for the said Plantation and Colony, have hereto- 
fore taken, and after such Oaths, by you the said Sir William Berkeley 
and Richard Kemp so taken as aforesaid, We do hereby charge and 
command you, to administer unto the said Sir Francis Wyatt Knight, 
John West, Samuel Matthews, Nathaniel Littleton, Christopher Wormeley, 
William Peirs, Roger Windgate, John Hopton, Thomas Paulet, George 
Minify, Henry Brown, William Brocas, Argal Yardley, Thomas Pettus, 
Thomas Willoughby, Richard Bennet, and Humfrey Higgeson, and every 
of them, the like Oath upon the Holy Evangelist, as you or either of you 
have already taken, as Counsellor, of or for the said Colony or Planta- 
tion ; Willing and requiring you and them, to be diligent and attendant 
in the execution of this our Service and Commandment, and also re- 
quiring all our loving Subjects there, to be directed and governed by you, 
or the greater number, of you and them our Commissioners aforesaid, in 
all things, according to the intention and true meaning of these Presents ; 
And lastly, our Will and Pleasure is, that this our Commission shall 
continue in force, until We, by some other Writing under our Signet, 
Privy Seal, or Great Seal of England, shall signify our Pleasure to the 
contrary. 

In Witness &>c. 

Witness our self at Westmi?ister, the ninth day of August. 

Per ipsum_ Regent. 






INSTRUCTIONS TO BERKELEY. 219 



3. INSTRUCTIONS TO SIR WILLIAM BERKELEY AS 
GOVERNOR OF VIRGINIA, [1641]. 

[From the MacDonald Papers (pp. 376-3SS), in the Virginia State Library; 
printed in the Virginia Magazine of History and Biography, ii. 2S1.]* 

Instructions to Sir William Berkeley, Knt., one of the Gentlemen of 
our Privy Chamber, Governor of Virginia, and to the Council of State 
there : 

That in the first place you be carefull Almighty God may be duly and 
daily served according to the Form of Religion established in the church 
of England both by yourself and all the people under your charge, which 
may draw down a blessing on all your endeavours. And let every con- 
gregation that hath an able minister build for him a convenient Par- 
sonage House, to which for his better maintenance over and above the 
usual pension you lay 200 acres of Gleable lands, for the clearing of that 
ground every of his Parishoners for three years shall give some days 
labours of themselves and their Servants, and see that you have a special 
care that the Glebe Land be sett as neare the Parsonage House as may 
be and that it be of the best conditioned Land. Suffer no invasion in 
matters of Religion and be careful to appoint sufficient and conformable 
Ministers to each congregation, that you chatechise and instruct them in 
the grounds and principles of Religion. 

2. That you administer the Oaths of Allegiance and Supremacy to 
all such as come thither with intention to plant themselves in the coun- 
try, which if he shall refuse he is to be returned and shipped from thence 
home and certificate made to the Lords of the Councill, the same oath 
is to be administered to all other persons when you shall see it fitt as 
Mariners, Merchants &c. to prevent any danger of spyes. 

3. That Justice be equally administered to all his Majesty's subjects 
there residing and as neere as may bee after the forme of this Realm of 
England and vigilant care to be had to prevent corruption in officers 
tending to the delay or perverting of Justice. 

4. That you and the Councellors as formerly once a year or oftener, 
if urgent occasion shall require, Do summon the Burgesses of all and 
singler Plantations there, which together with the Governor and Coun- 
cill makes the Grand Assembly, and shall have Power to make Acts and 
Laws for the Government of that Plantation correspondent, as near as 

* Reprinted by permission of the Editor. 



220 APPENDIX A. 

may be, to the Laws of England, in which assembly the Governor is to 
have a negative voice, as formerly. 

[5.] That you and the Councill assembled are to sett down the fittest 
Months of the Quarterly meeting of the Councill of State, whereas they 
are to give their attendance for one and consult upon matter of Councill 
and State and to decide and determine such Causes as shall come be- 
fore them, and that free access be admitted to all Suitors to make known 
their particular grievances, being against what persons So ever wherein 
the Governor for the time being, as formerly, is to have but a casting 
voyce if the number of the councellors should be equally divided in 
opinion, besides the Quarterly Meeting of the Council it shall be lawful 
for you to summon, from time to time, Extraordinary meetings of the 
Councill according to emergent occasions. 

6. In case there shall be necessary cause to pr'ceed against any of 
the Councill for their own persons they are in such cases to be sum- 
moned by you, the Governor, to appear at the next Sessions of the 
Councill, holden there to abide their Sensare or otherwise, if you shall 
think it may concern either the Safety or quiet of that State to proceed 
more speedily with such an offender. It shall be lawful to summon a 
councijl extraordinary where at six of the councill at least are to be pres- 
ent with you, and by the Major part if [of] their voyces comit my 
councillors to safe custody or upon Bayle to abide the order of the next 
quarter councill. 

7. For the ease of the Country and quicker despatch of Business 
you, the Governor and Councill, may appoint in places convenient In- 
ferior Courts of Justice and Commissioners for the Same, to determine 
of suits not exceeding the value of Ten Pounds and for the punishments 
of such offences as you and the Councill shall think fitt to give them the 
power to hear and determine. 

8. The Governor shall appoint officers of sealing of writts and sub- 
ponas and such officers as shall be thought necessary for the execution 
[of] orders. 

And — also the acts and Laws of the Generall Assembly and for pun- 
ishing any neglect or contempt of the Said Orders, Acts or Laws re- 
spectively. And shall nominate and appoint all other publique officers 
under the degree of the councill, the Captain of the Fort, Master and 
Surveyor Generall excepted. 

9. That since the Councill attend his Majesties Service and the pub- 
lique business to the great hindrance of the private, that they and ten 
servants for every Councellor be exempted from all publique charges 



IXSTRL/CTfOXS TO BERKELEY. 221 

and contributions assessed and levyed by the Generall Assembly (a 
Warr defensive, assistance towards the Building of a Town or churches 
or the ministers' dues excepted). 

10. To avoid all questions concerning the Estates of Persons dying 
in Virginia, it shall be lawfull as it hath been used heretofore to make 
probates of Wills, and default of a Will to grant Letters of Administra- 
tion in ye Colony : Provided always that such to whom Administration 
is granted do put in sufficient security to be accomptable to such per- 
sons in England or elsewhere unto whom of right those Estates shall 
belong. And that such Probate of Wills and Letters of Administration 
shall be and abide in full force and virtue to all intents and purposes. 

n. To the end the country may be the better served against all 
Hostil Invasions it is requisite that all persons from the age of 16 to 60 
be armed with arms, both offensive and defensive. And if any person 
be defective in this kind, wee strictly charge you to command them to 
provide themselves of sufficient arms within one year or sooner if pos- 
sible it may be done, and if any shall faill to be armed at the end of the 
Term limited we will that you punish them severely. 

12. And for that Arms without the Knowledge of the use of them are 
of no effect wee ordain that there be one Muster Master Generall, ap- 
pointed by us for the Colony, who shall 4 times in the year and oftener (if 
cause be) not only view the anus, ammunition and furniture of every 
Persou in the Colony, but also train and exercise the people, touching 
the use and order of arms and shall also certify the defects if any be 
either of appearance or otherwise to you the Governor and Councill. 
And being informed that the place is vacant by the death of George 
Dunn we do nominate and appoint our trusty and beloved John West, 
Esq., being recommended unto us for his sufficiency and long experi- 
ence in the country, to be Muster Master of the said Colony. And for 
his competent maintenance we will that you, the Governor and Councill, 
so order the business at a General Assembly that every Plantation be 
rated equally according to the number of persons, wherein you are to 
follow the course practised in the Realm of England. 

13. That you cause likewise 10 Guarders to be maintained for the 
Port at Point Comfort. And that you take course that ye Capt n of ye 
said Port have a competent allowance for his services there. Also that 
the said ffort be well kept in Reparation and provided with ammunition. 

14. That new Comers be exempted the 1st yeare from going in p'son 
or contributing to the wars Save only in defence of the place where they 
shall inhabit and that only when the enemies shall assail them, but all 



222 APPENDIX A. 

others in the Colony shall go or be rated to the maintenance of the 
war proportionately to their abilitys, neither shall any man be priviledged 
for going to the warr that is above 16 years old and under 60, respect 
being had to the quality of the person, that officers be not forced to go 
as private soldiers or in places inferior to their Degrees, unless in case of 
supreme necessity. 

15. That you may better avoid and prevent the treachery of the 
savages we strictly forbid all persons whatsoever to receive into their 
houses the person of any Indian or to converse or trade with them 
without the especiall license and warr 1 given to that purpose according 
to the commissioner inflicting severe punishment upon the offenders. 

16. For preventing of all surprizes as well as of the treacherous 
savages as of any fforaine enemy we require you to erect Beacons in 
severall partes of ye Countries by firing whereof the country may take 
notice of their attempts of their Beacons or their watching them to beare 
the charge of the country as shall be determined by a Generall Assembly 
or otherwise by the shooting off 3 Pieces whereby they may take the 
Alarum as shall be found most convenient. 

17. That for raising of towns every one [of] ye [who] have and shall 
have a giant of 500 acres of land, shall, within a convenient time, build 
a convenient house of brick of 24 feet long and 16 feet broad with a 
cellar to it and so proportionately for Grants of larger or lesser quantity. 
And the grounds and platforms for the towns to be laid out in such form 
and order as the Governor and Councill shall appoint. And that you 
cause at ye publick charge of ye country a convenient house to be built 
where you and the councill may meet and sitt for the dispatching of 
publick affairs and hearing of causes. And because the buildings at 
Jamestown are for the most part decayed and the place found to be 
unhealthy and inconvenient in many respects. It shall be in the power 
of you and the council, with the advice of ye Generall Assembly, to 
choose such other seate for your chiefe Town and Residence of the 
Governor as by them shall be judged most convenient, retaining the 
ancient name of James Town. 

18. That you shall have power to grant Patents and to assign such 
Proportion of Land to all adventurers and Planters as have been useful 
heretofore in the like cases, either for adventurers of money, [or] Trans- 
portation of people thither according to the orders of the late company 
and since allowed by his Majesty. 

And that there likewise be the same proportion of Fifty acres of land 
granted and assigned for every p'son transported thither since Midsum- 



INSTRUCTIONS TO BERKELEY. 223 

mer, 1625. And that you continue ye same course to all persons trans- 
ported thither untill it shall be otherwise determined by his Maj ty . 

19. Whereas the greatest part of the Land on James River hath been 
formerly granted unto particular persons or public society but being by 
them either not planted at all or for many years deserted, divers planters 
have by orders and leave of the Governor and Councill of Virginia set 
down upon these lands or some part of them which was absolutely neces- 
sary for the defence and security of the Colony against the Indians, that 
the Governor confirm those Lands unto the present Planters and Posses- 
sors thereof. And that the like course be taken for Planting new Patents 
in any other places so unplanted and deserted as aforesaid where it shall 
be found necessary. And in case former proprietors make their claims 
thereunto that there be assigned to them the like quantities in any other 
part of the Colony not actually possessed where they shall make choice. 

20. That you call for the Charter Parties that Masters of Ships bring 
along with [them] and strictly examine whether they have truly p'formed 
the condicons of their contracts. And further, diligently to inquire and 
examine whether they have given sufficient and wholesome food and 
drink with convenient room to the passengers during the voyage. And 
that no Servants be discharged the Ships and turned ashore as formerly 
untill their Masters have notice and sufficient time to send for them. 
And that upon complaint in any of these particulars you give such 
redress as justice shall require. 

si. That in regard you may daily expect the coming of a fforaign 
enemy, Wee require you soon after the first landing that you publish 
by proclamation throughout the Colony that no person whatsoever upon 
the arrival of any ships shall dare to go on board without ye express 
warr f from you the Governor and councill, least by the means they be 
surprized to the great prejudice if not the overthrow of the Plantation. 

22. And to avoid that intolerable abuse of Ingrossing comodities of 
forestalling ye Market, That you require all Masters of Ships not to break 
Bulk until they arrive of Saint James City or otherwise without speciali 
orders from ye the Governor and Councill, and that care be taken that 
there be sufficient Storehouses and Warehouses for the same and con- 
venient laying of their goods as they shall arrive. 

23. That you endeavour by severe punishment to suppress drunken- 
ness, And that you be carefull ye great quantity of wine and strong 
waters be not sold into the hands of those that be likeliest to abuse it, 
but that so near as you can it may be equally disposed of for the 
relief of ye whole Plantation. And if any Merchant or other for 



224 APPENDIX A. 

private Lucre shall bring in any corrupt or unwholesome wines, waters 
or any other Liquors, such as may endanger the health of the people 
and shall so be found upon the oaths of sufficient p'sons appointed for 
the Tryall that the vessel be staved. 

24. That especiall care be taken for ye preservacon of neat cattle 
and that the flemales be not killed up as formerly, whereby the Colony 
will in short time have such plenty of victualls, yt much people may 
come thither for the setting up of iron works and other staple commodi- 
ties. That you cause the People to plant great store of corne, as there 
maybe one whole years provision before hand in the Colony least in 
relying upon one single Harvest, Drought, Blasting or otherwise they 
fall into such wants or Famine as formerly they have endured. And 
that the Plow may go and English [ ?] be sowed in all places convenient. 
And that no Corne nor Cattle be sold out of the Plantation without 
leave from the Governor and Councill. 

25. That they apply themselves to the Impaling of Orchards and gar- 
dens for Roots and Fruits w'ch that country is so proper for, & that every 
Planter be compelled for every 500 acres granted unto him to Inclose 
and sufficiently fFence either with Pales or Quicksett and Dikes, and so 
from time to time to preserve, enclosed and ffenced a quarter of an acre 
of Ground in ye most convenient place near his Dwelling House for 
Orchards and gardens. 

26. That whereas yo r Tobacco falleth every day more and more unto 
a baser price, that it be stinted into a far less proportion then hath been 
made in ye last year 1637, not only to be accounted by the plants but by 
the quantity when 'tis cured. And because of Great Debts of the Planter 
in Tobacco, occasioned by the excessive rates of commodities have been 
the stinting thereof, so hard to be put into execution that the course 
commanded by his Majesty in his letter of the 22nd of April, in ye 13th 
year of His Reign for regulating ye debts of ye Colony be duly observed. 
And also not to suffer men to build slight cottages as heretofore hath 
been there used. And to remove from place to place, only to plant 
Tobacco. That Trademen and Handy Crafts be compelled to follow 
their severall Trades and occupations, and that ye draw you into Towns. 

27. We require you to use yo r best endeav r to cause ye people there 
to apply themselves to the raising of more staple commodities as Hemp 
and Flax, Rope, Seed and Madder, Pitch & Tarr for Tanning of Hides 
and Leather. Likewise every Plantation to plant a proportion of Vines, 
answerable to their numbers, and to plant white Mulberry Trees, and 
attend Silk Worms. 



INSTRUCTIONS TO BERKELEY. 225 

2S. That the Merchant be not constrained to take Tobacco at any 
Price, in Exchange for his wares. But that it be lawfull for him to make 
his own Bargain for his goods he so changeth notwithstanding any Pro- 
clamation here published to the contrary. 

29. That no merchant shall be suffered to bring in Ten pounds worth 
of wine or strong waters that brings not one hundred pounds worth of 
necessary commodities and so rateably. And that every Merchant that 
deserveth a Wan* for the recovery of his Debt shall bring in a bill of 
Parcells with the Rates of the severall Commodities, whereby ye certainty 
of the Debt and ye comodities thereof may ye better appeare. 

30. That whereas many ships laden with Tobacco and other merchan- 
dize from thence, carry ye same immed ly into rTorraine countries, whereby 
his Map loseth ye custom and Duties thereupon due, nothing being 
answered in Virginia, You bee very carefull that no ship or other vessell 
whatsoever depart from thence, fraighted with Tobacco or other com- 
modities w h that country shall afford, before Bond w h sufficient sureties 
be taken to Ma ties use to bring the same directly unto his Maj ties Domin- 
ions and not else where, and to bring a Bill of Lading from home that the 
staple of those comodities may be made here, whereby his Maj tie , after 
so great expence upon that Plantation and so many of his subjects Trans- 
ported thither, may not be defrauded of what shall be justly due unto 
him for custom and other duties upon those goods. These Bonds to be 
transmitted to ye Councill here, and from thence to ye Exchequer, that 
ye Delinquent may be proceeded with according to due course of Law. 

31. Next that you strictly and resolutely forbid all Trade or Trucking 
for any Merchandize whatsoever w h any ship other then His Maj ties sub- 
jects, that shall either purposely or casually come to any of y r plantations. 
And that if, upon some unexpected occasions and necessity, the Gover- 
nor and Councill shall think fitt to admitt such intercourse, w ch we admitt 
not but upon some extremity, That good caution and Bond be taken, 
both of the Master and also the owner of the said Tobacco or other 
comodities so laden that they shall (Damages of the Sea Excepted) be 
brought to our Port of London, there to pay unto us such duties as are 
due upon the same. 

And to conclude, That in all things accordingly to y r best understand- 
ing ye endeavour the extirpation of vice and encouragement of Religion, 
virtue and goodness. 

CHARLES. 



15 



226 APPENDIX A. 

4. COMMISSION TO FRANCIS BERNARD AS GOVERNOR 
OF NEW JERSEY, 1758. [Draft] 

[From the Public Record Office, Board of Trade, New Jersey Papers, vol. xvi. 
p. 25 ; printed in New Jersey Documents, ix. 23.] 

i. # George the Second by the Grace of God, of Great Britain, 
France and Ireland King, Defender of the Faith, &c. 

To Our trusty and Wellbeloved Francis Bernard Esq r Greeting : We 
reposing especial Trust and Confidence in the Prudence, Courage and 
Loyalty of you the said Francis Bernard, of our especial Grace certain 
Knowledge and meer motion, have thought fit to constitute and appoint, 
and by these Presents do constitute and appoint you the said Francis 
Bernard to be Our Cap n General and Governor in Chief in & over Our 
Province of Nova Csesarea or New Jersey, Viz : the Division of East and 
West New Jersey in America, which we have thought fit to reunite into 
one Province and settle under one entire Government. 

2. And We do hereby require and command you to do and execute 
all things in due manner, that shall belong unto your said Command and 
the Trust W T e have reposed in you, according to the several Powers and 
Directions granted or appointed you by this present Commission, and 
the Instructions and Authorities herewith given you, or by such further 
Powers, Instructions and Authorities as shall at any time hereafter be 
granted or appointed you under Our Signet and Sign Manual or by Our 
Order in Our Privy Council, and according to such reasonable Laws and 
Statutes, as now are in Force, or hereafter shall be made and agreed upon 
by you, with the Advice and Consent of Our Council and the Assembly 
of Our said Province under your Government, in such manner and form 
as is hereafter expressed. 

3. And Our Will and Pleasure is, that you the said Francis Bernard, 
after the Publication of these Our Letters Patents, do in the first Place 
take the oaths appointed to be taken by an Act passed in the first Year 
of Our late Royal Father's Reign, entituled, An Act for the further Secu- 
rity of His Majesty's Person and Government, and the Succession of the 
Crown in the Heirs of the late Princess Sophia being Protestants, and for 
extinguishing the Hopes of the pretended Prince of Wales and his open 
and secret Abettors : As also that you make and subscribe the Declara- 
tion mentioned in an Act of Parliament made in the 25* Year of the 

* The paragraphs are not numbered in the original ; the figures are inserted here 
for convenience of reference. 



COMMISSION TO BERNARD. 22J 

Reign of King Charles the Second, Entituled an Act for preve?iting 
Dangers which may happen from Popish Recusants, and likewise that 
you take the usual Oath for the due Execution of the office and Trust, 
of Our Captain General and Governor in Chief in and over Our said 
Province of Nova Cassarea or New Jersey ; as well with regard to the 
due and impartial Administration of Justice, as otherwise ; and further 
that you take the Oath requir'd to be taken by Governors of Planta- 
tions to do their utmost, that the several Laws relating to trade and the 
Plantation be observed ; which said Oaths and Declaration Our Council 
in Our said Province or any three of the Members thereof, have hereby 
full Power and Authority, and are required to tender and administer unto 
you, and in your Absence to Our Lieutenand[t] Governor, if there be 
any upon the Place ; all which being duly performed. You shall ad- 
minister to each of the Members of Our said Council, as also to Our 
Lieutenant Governor, if there be any upon the Place, the Oaths men- 
tioned in the said Act, entituled, an Act for the further Security of His 
Majesty* s Person and Government and the Succession of the Crown in the 
Heirs of the late Princess Sophia being Protestants, and for extinguishing 
the hopes of the pretended Prince of Wales and his open and secret Abet- 
tors ; You shall also cause them to make and subscribe the aforemen- 
tion'd Declaration, and administer to them the Oath for the due 
Execution of their Places and Trusts. 

4. And We do hereby give and grant unto you full Power and 
Authority to suspend any of the Members of Our said Council, from 
sitting, voting and assisting therein, if you shall find just Cause for so 
doing. 

5. And if it shall at any time happen, that by the Death, Departure 
out of Our said Province, or suspension of any of Our said Councillors or 
otherwise, there shall be a Vacancy in Our said Council, any three whereof 
"We do hereby appoint to be a Quorum ; Our Will and Pleasure is, that 
you signify the same unto us by the first opportunity, that We may under 
Our Signet and Sign Manual constitute and appoint others in their 
Stead. 

6. But that Our Affairs may not suffer at that Distance, for Want of a 
due Number of Councillors, if ever it shall happen that there be less than 
seven of them residing in Our said Province ; We do hereby give & grant 
unto you the said Francis Bernard full Power and Authority to chuse as 
many Persons out of the Principal Freeholders, Inhabitants thereof, as 
will make up the full Number of Our said Council to be seven, and no 
more ; which Persons so chosen and appointed by you, shall be to all 



228 APPENDIX A. 

intents and purposes Councillors in Our said Province, untill either they 
shall be confirmed by Us, or that by the Nomination of Others by Us 
under Our Sign Manual and Signet, Our said Council shall have seven 
or more Persons in it. 

7. And We do hereby give and grant unto You full Power & Authority, 
with the Advice and Consent of Our said Council, from time to time as 
need shall require, to summon and call general Assemblies of the said 
Freeholders and Planters within your Government, in manner and form 
as shall be directed in Our Instructions, which shall be given you together 
with this Our Commission. 

8. And Our Will and Pleasure is, that the Persons thereupon duly 
elected by the Major Part of the Freeholders of the respective Counties 
and Places, and so returned, shall, before their sitting, take the Oaths 
mentioned in the said Act, entituled, an Act for the further Security of 
His MafV Person and Government and the Succession of the Crown in 
the Heirs of the late Princess Sophia being Protestants, a7idfor extinguish- 
ing the hopes of the pretended prince of Wales and His open and secret 
Abettors ; as also make and subscribe the aforementioned declaration, 
or being of the people called Quakers, shall take the Affirmation, and 
make* and subscribe the declaration appointed to be taken and made 
instead of the Oaths of Allegiance, Supremacy and Abjuration, by an Act 
passed within Our said Province of Nova Csesarea or New Jersey, in the 
first Year of our Reign, entituled, an Act prescribing the Forms of Decla- 
ration of Fidelity, the Effect of the Abjuration, Oath and Affirmation, in- 
stead of the Forms heretofore required in such Cases ; and for repealing 
the former Acts in the like Cases made &> provided; which Oaths, Affir- 
mation & Declaration You sljall commissionate fit Persons under Our 
Seal of Nova Csesarea or New Jersey to tender and administer unto 
them ; and until the same shall be so taken, made & subscrib'd, no per- 
son shall be capable of sitting though elected, And We do hereby declare 
that the persons so elected and qualifyed shall be call'd and deemed the 
General Assembly of that Our Province. 

9. And you the said Francis Bernard, with the Consent of Our said 
Council, [and] Assembly or the Major Part of them respectively, shall 
have full Power and Authority to make, constitute and ordain Laws, 
Statutes and Ordinances for the publick Peace, Welfare & good Govern- 
ment of Our said Province and of the People and Inhabitants thereof, and 
such others as shall resort thereto, and for the Benefit of Us, Our Heirs 
and Successors ; which said Laws, Statutes and Ordinances are not to be 
repugnant, but as near as may be agreable unto the Laws and Statutes of 



COMMISSION TO BERNARD, 229 

this Our Kingdom of Great Britain j provided that all such Laws, Statutes 
and Ordinances, of what Nature or duration soever, be, within three Months 
or sooner after the making thereof, transmitted unto Us under Our Seal 
of Nova Caesarea or New Jersey, for Our Approbation or disallowance of 
the same, as also Duplicates thereof by the next Conveyance. 

10. And in case any or all of the said Laws, Statutes and Ordinances 
(being not before confirm'd by Us) shall at any time be disallow'd and 
not approved, and so signified by Us, Our Heirs or Successors under Our 
or their Sign Manual and Signet, or by Order of Our or their Privy Coun- 
cil unto you the said Francis Bernard or to the Commander in Chief of 
Our said Province for the time being, then such and so many of the said 
Laws, Statutes and Ordinances as shall be so disallowed and not approved, 
shall from henceforth cease, determine and become utterly void and of 
none Effect, any thing to the contrary thereof notwithstanding. 

n. And to the end that nothing maybe passed or done by Our said 
Council or Assembly, to the Prejudice of us, Our Heirs and Successors, 
We Will cV Ordain, that you the said Francis Bernard shall have and 
enjoy a Negative Voice in the making and passing of all Laws, Statutes 
and Ordinances, as aforesaid. 

12. And you shall and may likewise from time to time, as you shall 
judge it necessary, adjourn, prorogue and dissolve all General Assemblies, 
as aforesaid. 

13. And Oar further Will &> Pleasure is, that you shall and may use 
and Keep the Publick Seal of Our Province of Nova Caesarea or New 
Jersey, for sealing all things whatsoever that pass the Great Seal of Our 
said Province under your Government. 

14. And We do further give & grant unto you the said Francis Ber- 
nard full Power and Authority from time to time and at any time here- 
after, by Yourself or by any other to be authorized by you in that behalf, 
to administer and give the abovementioned Oaths and Affirmations to 
all and every such Person and Persons as you shall think fit, who shall 
at any time or times pass into Our said Province or shall be resident or 
abiding there. 

15. And We do further by these Presents give and grant unto you 
the said Francis Bernard full Power and Authority with the Advice and 
Consent of Our said Council, to erect, constitute and appoint such & so 
many Courts of Judicature and publick justice within Our said Province 
under your Government, as you and they shall think fit and necessary 
for the hearing and determining all causes, as well Criminal as Civil, 
according to Law and Equity, and for awarding of Execution thereupon, 



230 APPENDIX A. 

with all reasonable and necessary Powers, Authorities, Fees and Privi- 
leges belonging thereto ; as also to appoint and commissionate fit Per- 
sons in the several parts of your Government to administer the Oaths 
mentioned in the aforesaid Act, Entituled, an Act for the further Secu- 
rity of Our Person and Government and the Succession of the Crown in 
the Heirs of the late Princess Sophia being Protestants, and for extin- 
guishing the hopes of the pretended Pri?ice of Wales and his open and 
secret Abettors ; as also to tender and administer the aforesaid Declara- 
tions and Affirmations unto such Persons belonging to the said Courts as 
shall be obliged to take the same. 

1 6. And We do hereby authorize and impower You to constitute and 
appoint Judges (and in Cases requisite Commissioners of Oyer and Ter- 
miner), Justices of the Peace, and other necessary Officers and Minis- 
ters in Our said Province for the better Administration of Justice and 
putting the Laws in Execution, and to administer or cause to be admin- 
istered unto them such Oath or Oaths as are usually given for the due 
Execution and Performance of Offices and Places, and for the clearing 
of Truth in Judicial Causes. 

17. And We do hereby give and grant unto you full Power and 
Authority where you shall see Cause, or shall judge any offender or 
offenders in criminal Matters, or for any Fines or Forfeitures due unto 
Us, fit Objects of Our Mercy, to pardon all such Offenders, and to re- 
mit all such Offences, Fines and Forfeitures, Treason and Willful Mur- 
der only excepted, in which Cases you shall likewise have Power upon 
extraordinary Occasions to grant Reprieves to the Offenders, untill and 
to the Intent Our Royal Pleasure may be Known therein. 

18. And We do by these Presents authorize and impower you to col- 
late any Person or Persons to any Churches, Chapels or other Ecclesi- 
astical Benefices within Our said Province, as often as any of them shall 
happen to be void. 

19. And We do hereby give and grant unto you the said Francis Ber- 
nard by yourself or by your Captains and Commanders by you to be 
authorized, full Power and Authority to levy, arm, muster, command, 
and imploy all Persons whatsoever residing within Our said Province 
of Nova Csesarea or New Jersey under your Government, and, as Occa- 
sion shall serve, to march from one place to another, or to embark them 
for the resisting and withstanding of all Enemies, Pirates and Rebels, 
both at Sea and Land, and to transport such Forces to any of Our 
Plantations in America (if necessity shall require) for the Defence of 
the same against the invasion or Attempts of any of Our Enemies, and 



COMMISSION TO BERNARD. 23 I 

such Enemies, Pirates and Rebels, if there shall be occasion, to persue 
and prosecute in or out of the Limits of Our said Province and Planta- 
tions or any of them ; and, if it shall so please God, them to vanquish, 
apprehend and take, and being taken either according to Law to put to 
Death, or Keep and preserve alive at your Discretion, & to execute 
Martial Law in time of Invasion or other times when by Law it may 
be executed, and to do and execute all and every other thing and 
things which to Our Captain General and Governor in Chief doth or 
ought of Right to belong. 

20. And We do hereby give and grant unto you full Power & Author- 
ity, by and with the Advice and Consent of Our said Council, to erect, 
raise and build in Our said Province of Nova Caesarea or New Jersey 
such and so many Forts and Platforms, Castles, Cities, Boroughs, Towns 
and Fortifications, as You by the Advice aforesaid shall judge necessary ; 
and the same or any of them to fortify and furnish with Ordnance, Am- 
munition, and all sorts of Arms fit and necessary for the security & De- 
fence of our said Province, and by the Advice aforesaid the same again 
or any of them to demolish or dismantle as may be most convenient. 

21. And for asmuch as divers Mutinies and Disorders may happen by 
Persons shipped and imploy'd at Sea, during the time of War, and to 
the end that such as shall be shipped & imployed at Sea during the time 
of War, may be better govrn'd and order' d ; We do hereby give and 
grant unto You the said Francis Bernard full Power and Authority to 
constitute and appoint Captains, Lieutenants, Masters of Ships and 
other Commanders and officers, and to grant unto such Captains, Lieu- 
tenants, Masters of Ships and other Commanders and officers, Commis- 
sions to execute the Law Martial, during the time of War, according to 
the Directions of an Act passed in the 2 2 d year of Our Reign, entitled, 
an Act for amending, explaining and reducing into one Act of Parlia- 
ment the Laws relating to the Government of his Majestys' Ships, Ves- 
sels and Forces by Sea ; and to use such proceedings, Authorities, 
Punishments, Corrections and Executions upon any offenders, who shall 
be Mutinous, Seditious, Disorderly or any way unruly, either at Sea or 
during the time of their Abode or Residence in any of the Ports, Har- 
bours, or Bays of Our said Province, as the Cause shall be found to re- 
quire, according to Martial Law and the said Directions, during the 
time of War, as aforesaid, Provided that nothing here in contain'd shall 
be construed to the enabling you, or any by your Authority, to hold plea 
or have any Jurisdiction of any offence, Cause, Matter or Thing com- 
mitted or done upon the high Sea, or within any of the Havens, Rivers 



232 APPENDIX A. 

or Creeks of Our said Province under your Government, by any Cap- 
tain, Commander[,] Lieutenant, Master, officer, Seaman, Soldier or 
other Person whatsoever, who shall be in actual Service and pay, in 
or on Board any of Our Ships of War or other Vessels acting by imme- 
diate Commission or Warrant from our Commissioners for executing 
the office of Our High Admiral, or from Our High Admiral of Great 
Britain for the time being under the Seal of Our admiralty; but 
that such Captain, Commander, Lieutenant, Master, officer, Seaman, 
Soldier, or other Person so offending, shall be left to be proceeded 
against and tryed as their offences shall require ; either by Commission 
under Our Great Seal of Great Britain, as the Statute of the 28^ of 
Henry the eight directs ; or by Commission from Our said Commission- 
ers for executing the office of Our High Admiral ; or from Our High 
Admiral of Great Britian for the time being, according to the afore- 
mention'd Act for amending, explaining and reducing into one Act of 
parliament the Laws relati?ig to the Government of His Majesty's* 
Ships, Vessels and Forces by Sea, and not otherwise. 

22. Provided nevertheless that all Disorders and Misdeameanors com- 
mitted on Shore by any Captain, Commander, Lieutenant, Master, officer, 
Seaman, Soldier or other Person whatsoever, belonging to any of Our 
Ships of War or other Vessels acting by immediate Commission or War- 
rant from Our said Commissioners for executing the office of Our High 
Admiral, or from Our High Admiral of Great Britain for the time being 
under the Seal of Our Admiralty may be tryed and punished according 
to the Law of the place where any such Disorders, offences and Misde- 
meanours shall be committed on Shore, notwithstanding such offender 
be in Our actual Service and born in Our Pay on Board any such Our 
Ships of War or other Vessels acting by immediate Commission or War- 
rant from Our said Commissioners for executing the office of Our High 
Admiral or from Our High Admiral of Great Britain for the time being 
as aforesaid, so as he shall not receive any protection for the avoiding 
Justice for such offences committed on Shore, from any pretence of his 
being imployed in Our Service at Sea. 

23. Our further Will & Pleasure is, that all publick Money raised or 
which shall be raised by any Act hereafter to be made within Our said 
Province, be issued out by Warrant from You, by and with the advice 
& Consent of Our Council, and disposed of by you for the Support of 
the Government, and not otherwise. 

24. And We do hereby give you the said Francis Bernard full Power 
and Authority to order and appoint Fairs, Marts and Markets, as also 



COMMISSION TO BERNARD. 233 

such and so many Ports, Harbours, Bays, Havens and other Places for 
the Convenience and Security of Shipping and for the better Loading 
and unloading of Goods and Merchandize, as by you, with the Advice 
and Consent of Our said Council, shall be thought fit and necessary. 

25. And We do hereby require and command all Officers & Ministers 
Civil and Military, and all other Inhabitants of Our said province to 
be obedient, aiding and assisting unto you the said Francis Bernard in 
the execution of this Our Commission, and of the Powers and Authorities 
herein contain'd ; And in Case of your Death or Absence out of Our said 
Province, to be Obedient, aiding and assisting unto such Person as shall 
be appointed by Us to be Our Lieutenant Governor or Commander in 
Chief of our said province, to whom We do therefore by these presents 
give and grant all and singular the powers and Authorities herein granted 
to be by him executed & enjoyed during Our pleasure, or until your ar- 
rival within Our said province. 

26. And if upon your Death or Absence out of Our said province there 
be no person upon the place commissionated or appointed by us to be 
Our Lieutenant Governor or Commander in Chief of Our said province, 
Our Will & Pleasure is, that the eldest Councillor whose name is first 
placed in Our said Instructions to you, and who shall be at the time of 
your Death or Absence residing within Our said province of New Jersey, 
shall take upon him the Administration of the Government, & execute 
Our said Commission and Instructions and the several Powers and Author- 
ities therein contain'd, in the same Manner and to all Intents and pur- 
poses as other Our Governor or Commander in Chief of Our said province 
shou'd or ought to do, in Case of your Absence untill you return, or in 
all Cases untill Our further Pleasure be Known therein. 

27. And We do hereby declare, ordain and appoint, that you the said 
Francis Bernard shall and may hold, execute and enjoy the office & Place 
of Our Captain General and Governor in Chief in and over Our province 
of Nova Caesarea or New Jersey, together with all and Singular the Pow- 
ers and Authorities hereby granted unto you for and during Our Will and 
Pleasure. In Witness whereof We have caused these our Letters to be 

made Patents. Witness Ourself at Westminster the day of 

1758 in the thirty first year of Our Reign. And for so doing 

this shall be your Warrant. Given at our Court at S l James's the 

day of 1758 in the thirty first year of Our Reign. 1 

1 This draft of a commission was approved by an order of council dated Janu- 
ary 27, 175S. See Analytical Index to the Colonial Documents of New Jersey (New 
Jersey Historical Society, Collections, V.), 344. 



234 APPENDIX A. 

5. INSTRUCTIONS TO FRANCIS BERNARD AS GOVERNOR 
OF NEW JERSEY, 1758. [Draft] 

[From the Public Record Office, Board of Trade, New Jersey papers, vol. xvi. 
p. 64 ; printed in New Jersey Documents, ix. 40.] 

Instructions to Our Trusty and Well beloved Francis Ber- 
nard Esq* Our Captain General and Governor in Chief in 
and over Our province of Nova Caesarea or New Jersey in 

America. Given at Our Court at S* James's the day 

of 1758 in the thirty first day of Our Reign. 

i 5 } With these Our Instructions your [you] will receive Our Com- 
mission under Our Great Seal of Great-Britain, constituting You Our 
Capt n General and Governor in Chief in and over Our province of New- 
Jersey, You are therefore with all convenient Speed to repair to Our 
said Province, and being there arrived, You are to take upon you the 
Execution of the Peace [Place] and Trust We have reposed in You, and 
forthwith to call together the Members of our Council in and for that 
province, viz* Jn° Reading, Robert Hunter Morris, Edward Antill, 
James Hude, Andrew Johnston, Peter Kimbold, Thomas Leonard, 
Rich? Salter, David Ogden, Lewis Ashfield, Samuel Woodruffe and 
W m Alexander Esq? 

2 A . And you are with all due Solemnity to cause Our said Commission 
to be read and published at the said Meeting of our Council, which be- 
ing done, You shall then take and also administer to each of the Mem- 
bers of Our said Council the Oaths mention'd in an Act pass'd in the 
first Year of His late Majesty Our Royal Father's Reign, entituled, aft 
Act for the further Security of His Majesty's Person and Government 
and the Succession of the Crown in the Heirs of the late princess Sophia 
being Protestants^ and for extinguishing the hopes of the pretended prince 
of Wales and His open and secret Abettors : as also make and subscribe 
and cause the Members of Our said Council to make and subscribe the 
Declaration mentioned in an Act of Parliament made in the 25 th Year 
of the Reign of King Charles the second, entituled, an Act for preventing 
Dangers which may happen by Popish Recusants ; And you, and every 
of them, are likewise to take an Oath for the due Execution of your and 
their places and Trusts with Regard to your and their equal and impar- 
tial Administration ; of Justice ; and you are also to take the Oath re- 
quired by an Act pass'd in the 7 & 8 years of the Reign of King William 



INSTRUCTIONS TO BERNARD. 235 

the 3 d to be taken by Governors of Plantations to do their utmost that 
the Acts of Parliament relating to the plantations be observed. 

3. You shall administer or cause to be administered the Oaths men- 
tioned in the aforesaid Act, entituled, an Act for the further Security of 
His Majesty s Person and Government, and the Succession of the Crown 
in the Heirs of the late Princess Sophia being Protestants, and for extin- 
guishing the Hopes of the pretended Prifice of Wales, and his open and 
secret Abettors ; to the Members and officers of the Council and Assem- 
bly, and to all Judges, Justices, and all other Persons, that hold any 
Office or Place of Trust or Profit in the said Province, whether by virtue 
of any patent under Our Great Seal of this Kingdom, or the Publick 
Seal of New Jersey, or otherwise j And you shall also cause them to 
make and subscribe the aforesaid Declaration ; without the doing of all 
which you are not to admit any person whatsoever to any publick Office, 
nor suffer those who have been admitted formerly, to continue therein. 

4. You are forthwith to communicate to Our said Council such and so 
many of these Our Instructions wherein their Advice and Consent are 
required, as likewise all such others from time to time as you shall find 
convenient for Our Service to be imparted to them. 

5. You are to permit the Members of Our said Counb[c]il to have 
and enjoy Freedom of Debate and Vote in all Affairs of publick Concern, 
that may be debated in Council. 

6. And although by Our Commission aforesaid We have thought fit 
to Direct, that any three of Our Councillors make a Quorum, it is never- 
theless Our Will a?id Pleasure, that you do not act with a Quorum of 
less than five Members, unless upon extraordinary Emergencies, when 
a greater Number cannot be conveniently had. 

7. And that we may be always informed of the Names and Characters 
of Persons fit to supply the Vacancies that shall happen in Our said 
Council, you are from time to time, when any Vacancies shall happen 
in Our said Council, forthwith to transmit unto Our Commissioners for 
Trade and Plantations, in order to be laid before Us, the Names of three 
persons, Inhabitants of the Eastern Division, and the Names of three 
other Persons Inhabitants of the Western Division, of Our said Province, 
whom you shall esteem the best qualifyed for that Trust. 

8. And whereas by Our Commission You are impower'd, in Case of 
the Death or Absence of any of Our Council of the said Province, to 
fill up the Vacancies in Our said Council to the number of seven, and 
no more j you are from time to time to send to Our Commissioners for 
Trade and Plantations, in order to be laid before Us, the Name or Names 



236 APPENDIX A. 

and Qualities of any Member or Members by you put into Our said 
Council by the first conveniency after your so doing. 

9. And in the Choice and nomination of the Members of Our said 
Council, as also of the Chief Officers, Judges, Assistant Justices and 
Sheriffs ; You are always to take Care, that they be men of good Life, 
well affected to Our Government, of good Estates, and of Abilities suit- 
able to their Employments. 

10. You are neither to augment nor diminish the Number of Our said 
Council, as it is already establish'd, nor to suspend any of the Mem- 
bers thereof without good and sufficient Cause, nor without the Con- 
sent of the Majority of the said Council signified in Council, after due 
Examination of the Charge against such Councillor and his answer there- 
unto. And in Case of Suspension of any of them, You are to cause your 
Reasons, for so doing, together with the Charges and proofs against the 
said Persons, and their Answers thereunto, to be duly entred upon the 
Council Books ; and forthwith to transmit Copies thereof, to Our Com- 
missioners for Trade and Plantations, in Order to be laid before us. 
Nevertheless if it should happen, that you should have Reasons for sus- 
pending any Councillor not fit to be communicated to the Council, you 
may in that Case suspend such Person without their consent ; but you 
are thereupon immediately to send to Our Commissioners for Trade and 
Plantations, in Order to be laid before Us, an Account of your proceed- 
ings therein, with your Reasons at large for such Suspension, as also for 
not communicating the same to the Council, and Duplicates thereof by 
the next Opportunity. 

11. And whereas We are sensible, that effectual Care ought to be 
taken to oblige the Members of Our Council to a due Attendance 
therein, in Order to prevent the many inconveniences that may happen 
for want of a Quorum of the Council to transact Business, as Occasion 
may require ; It is Our Will &* Pleasure, that, if any of the Members 
of Our said Council residing in the said Province shall hereafter absent 
themselves, from Our Said Province, and continue absent above the 
Space of twelve months together, without leave from you or from Our 
Governor or Commander in Chief of the said Province for the time be- 
ing, first obtain'd under your or his Hand and Seal, or shall remain ab- 
sent for the Space of two Years successively, without Our Leave given 
them under Our Royal Sign Manual, their place or places in Our said 
Council shall immediately thereupon become void ; and that if any of 
the Members of Our said Council residing in our said Province shall 
hereafter willfully absent themselves from the Council Board when duly 



INSTRUCTIONS TO BERNARD. 237 

summoned without a just and lawfull Cause, and shall persist therein after 
Admonition, you suspend the said Councillors, so absenting themselves, 
till Our further pleasure be known, giving timely notice thereof to Our 
Commissioners for Trade and plantations, in Order to be laid before 
Us ; And We do hereby Will and require you, that this Our pleasure be 
signified to the several Members of Our Council aforesaid, and that it 
be enter'd in the Council Books of Our said Province as a standing 
Rule. 

12. And Our Will and Pleasure is, that with all convenient Speed 
you call together one general Assembly for the enacting of Laws for the 
joint and mutual Good of the whole province ; that the first meeting 
of the said general Assembly be at Perth Amboy in East New Jersey, in 
case the last was at Burlington ; And that all future General Assemblies 
do meet and sit at one or the other of these Places alternately, or other- 
wise as You, with the Advice of Our foresaid Council, shall think fit in 
Case of extraordinary Necessity to appoint them. 

13. Our Will & Pleasure is, and you are accordingly to make the 
same Known in the most publick Manner, that the Method of choosing 
Representatives for the future shall be, as follows ; Viz 1 two by the In- 
habitants — Householders of the City or Town of Perth Amboy in East 
New Jersey, and two by the Freeholders of each of the Five Counties in 
the said Division of East New Jersey ; Two by the Inhabitants House- 
holders of the city or Town of Burlington in West New Jersey, and two 
by the Freeholders of each of the five Counties in the said Division of 
West New Jersey ; which Persons, so to be chosen, make up together 
the Number of twenty four Representatives. And it is Our further Will 
6° Pleasure, that no Person shall be capable of being elected a Repre- 
sentative by the Freeholders of either Division, as aforesaid, or afterwards 
of sitting in general Assembly, who shall not have one thousand Acres of 
Land an Estate of Freehold in his own Right within the Division for which 
he shall be chosen, or have a personal Estate in Money, Goods or Chat- 
tels to value of five hundred pounds sterling and all Inhabitants of Our 
said Province being so qualifyed, as aforesaid, are hereby declared capable 
of being elected accordingly. 

14. You are to choose in the passing of Laws, that the Stile of enacting 
the same be by the Governor, Council and Assembly and no other ; You 
are also, as much as possible, to observe in the passing of all Laws, that 
whatever may be requisite upon each different matter be accordingly 
provided for by a different Law, without Intermixing in one and the 
same Act such things as have no proper relation to each other, and you 



238 APPENDIX A. 

are more especially to take care, that no Clause or Clauses be inserted in 
or annexed to any Act, which shall be foreign to what the Title of such 
respective Act imports ; and that no perpetual Clause be made part of 
any temporary Law ; and that no Act whatsoever be suspended, altered, 
continued revived or repeated [repealed] by general Words, but that the 
Title and Date of such Act so suspended, alter' d, continued, revived or 
repealed be particularly mentioned and expressed in the enacting part. 

15. And whereas several Laws have formerly been enacted in several 
of Our Plantations in America, for so short a time, that the Assent or re- 
fusal of Our Royal predecessors cou'd not be had thereupon before the 
time, for which such Laws were enacted, did expire ; You shall not for 
the future give Your Assent to any Law ; that shall be enacted for a less 
time than two Years, except in the Cases hereinafter mention'd. And 
you shall not reenact any Law to which the Assent of Us or Our Royal 
predecessors has once been refused, without express Leave for that pur- 
pose first obtained from Us, upon a full Representation by you to be 
made to Our Commissioners for Trade and Plantations, in order to be 
laid before Us, of the reason and necessity for passing such Law, nor 
give your Assent to any Law for repealing any other Act pass'd in Your 
Government, whether the same is [has] or has not received Our Royal 
Approbation, unless You take care that there be a Clause inserted therein 
suspending and deferring the Execution thereof until Our Pleasure be 
known concerning the same. 

16. And whereas great Mischiefs do arise by the Frequent passing Bills 
of an unusual and extraordinary Nature and Importance in Our Planta- 
tions, which Bills remain in force there from the time of enacting until 
Our Pleasure be signified to the contrary ; We do hereby Will and require 
you not to pass or give your Consent hereafter to any Bill or Bills in the 
Assembly of Our said Province of unusual and extraordinary Nature and 
importance, wherein Our Prerogative, or the Property of Our Subjects may 
be prejudiced, or the Trade or Shiping of this Kingdom any Ways af- 
fected, until you shall have first transmitted to Our Commissioners for 
Trade and Plantations, in order to be laid before Us, the Draught of 
such a Bill or Bills, and shall have receiv'd Our Royal Pleasure there- 
upon, unless you take care in the passing of any Bill of such Nature as 
beforementioned, that there be a Clause inserted therein, suspending and 
deferring the Execution thereof untill Our Pleasure shall be known con- 
cerning the same. 

17. You are also to take Care, that no private Act, whereby the prop- 
erty of private Persons may be affected, be passed, in which there is not 



INSTRUCTIONS TO BERNARD. 239 

a saving of the Right of Us, Our Heirs and Successors, all Bodies Politick 
or corporate, and of all other Persons, except such as are mentioned in 
the said Act and those claiming by, from and under them ; And fur- 
ther you shall take Care, that no such private Act be passed without 
a Clause suspending the Execution thereof, until the same shall have Our 
Royal Approbation. It is likewise Our Will and Pleasure, that you do 
not give your Assent to any private Act, until Proof be made before you 
in Council (and entred in the Council Books,) that publick notification 
was made of the Parties Intention to apply for such Act in the several 
Parish Churches, where the premises in Question lye, for three Sundays 
at least successively, before any such Act shall be brought into the Assem- 
bly ; and that a Certificate under your hand be transmitted with and an- 
nexed to every such private Act, signifying that the same has passed 
through all the forms above mention'd. 

iS. You are to take Care, that in all Acts or Orders to be passed within 
that Our said Province, in any Case for levying Money or imposing Fines 
and Penalties, express mention be made, that the same is granted or re- 
served to Us, Our Heirs or Successors for the Publick Uses of that Our 
Province and the support of the Government thereof, as by the said Act 
or Order shall be directed, and you are particularly not to pass any Law 
or do any Act by Grant, Settlement or otherwise, whereby Our Revenue 
may be Lessened or impaired without Our especial leave or Command 
therein. 

19. You are not to suffer any publick Money whatsoever to be issued 
or disposed of, otherwise than by Warrant under your hand, by and with 
the Advice and Consent of Our said Council, but the Assembly may be 
nevertheless permitted from time to time to view and examine the Ac- 
counts of Money or Value of Money disposed of by Virtue of Laws made 
by them, which you are to signify unto them, as there shall be occasion. 

20. You are not to permit any Clause whatsoever to be inserted in 
any Law for the "Levying Money or the Value of Money, whereby the 
same shall not be made lyable to be accounted for unto Us, and to Our 
Commissioners of Our Treasury or Our High Treasurer for the time be- 
ing, and audited by Our Auditor General of Our Plantations or his 
Deputy for the time being. And we do particularly require and enjoyn 
you, under the pain of Our highest Displeasure, to take Care, that fair 
Books of Accounts of all Receipts & payments of all publick Money be 
duly kept, and the Truth thereof attested upon Oath And that all such 
Accounts be audited and attested by the Auditor General of Our Planta- 
tions or his Deputy, who is to transmit Copies thereof to Our Commis' 



240 APPENDIX A, 

sioners of Our Treasury or to Our High Treasurer for the time being, 
and that you do every half Year or oftener send another Copy thereof 
attested by yourself to Our Commissioners for Trade and Plantations, 
and Duplicates thereof by the next Conveyance ; In which Books shall 
be specified every particular Sum raised, and disposed of, together with 
the names of the Persons to whom any Payment shall be made, to the 
end We may be satisfied of the Right and due application of the Revenue 
of Our said province with the probability of the increase or Diminution 
of it under every head or Article thereof. 

2 I s ! It is Our express Will and Pleasure, that no Law for raising any 
imposition on Wines or other strong Liquors be made to continue for 
less than one whole Year, and that all other Laws made for the supply 
and Support of the Government shall be indefinite and without Limita- 
tion, except the same be for a temporary Service, and which shall expire 
and have their full effect within the time therein prefixt. 

22. Whereas Acts have been passed in some of Our Plantations in 
America for striking Bills of Credit and issuing out the 

This Article same in lieu of Money, and for declaring the said Bills to 
was struck out be j j Tenders in payme nt of all private Contracts, 
by the Xords . ° i , . ^ ■, , 

of the Coun- Debts, Dues and Demands whatsoever, in Order to dis- 

cil, & in lieu charge their publick Debts and for other purposes ; from 
thereof was whence several Inconveniences have arisen; It is there- 
insert d the f ore q ut tfrtfi an( i Pleasure, that you do not give your 
iQ th Article of . 

y T L Assent to or pass any Act in the Province of New Tersey 
the Instruc- 

tions given to under your Government, whereby Bills of Credit may be* 

Jonathan Bel- struck or issued in lieu of Money, unless upon sudden 

cher Esq r the an d extraordinary Emergencies of Government, in Case 

late Gov Q f -yy ar or invasion, an d upon no other occasion what- 

in Co cil ever, and provided that in every such Act so to be passed 

dated i st of by you, due care be taken to ascertain the real Value of 

April 1758 such Bills of Credit, and that an ample and sufficient fund 

Bund lel De provided, for calling in, sinking and discharging the 

1 The article substituted was the same as the 19th article in the instructions to 
Governor Lewis Morris in 1738, which was as follows: " Whereas Acts have been 
pass'd in some of Our Plantations in America for striking Bills of Credit arid issu- 
ing out the same in lieu of Money in Order to discharge their publick Debts and 
for other purposes, from whence sev! Inconveniencies have arisen It is therefore 
Our Will and Pleasure that you do not give your Assent to, or pass any Act in Our 
said Province of New Jersey under your Government whereby Bills of Credit may 
be struck or issued in lieu of Money without a Clause be inserted in such Act de- 
claring that the same shall not take Effect, until the said Act shall have been ap- 



INSTRUCTIONS TO BERNARD. 241 

said Bills within a reasonable time, not exceeding five Years ; and pro- 
vided also, that such Bills of Credit shall not be declared to be a legal 
Tender in payment of any private Contracts, Bargains, Debts, Dues or 
Demands whatsoever within Our said Province ; and it is Our further 
Will &* Pleasure, that you do not upon any pretence whatsoever give 
your Assent to any Act or Acts, whereby the time limited or the Provision 
made for the calling in, sinking and discharging such paper Bills of Credit, 
as are already subsisting or passing in payment within Our said Province, 
shall be protracted or postponed, or whereby any of them shall be depre- 
ciated in Value, or whereby they shall be re-issued, or obtain a new and 
further Currency. 

23. Whereas several Inconveniences have arisen to Our Governments 
in the Plantations by Gifts and Presents made to Our Governors by the 
general Assemblies ; you are therefore to propose unto the Assembly at 
their first meeting after your Arrival, and to use your utmost Endeavour 
with them, that an Act be passed for raising and settling a publick Rev- 
enue for defraying the necessary Charge of the Government of Our said 
Province, and that therein Provision be particularly made for a competent 
Salary to yourself as Captain General and Governor in Chief of Our said 
Province, and to other Our succeeding Captains General and Governors 
in Chief for supporting the Dignity of the same Office, as likewise due 
Provision for the Contingent Charges of Our Council and Assembly, and 
for the Salaries of the respective Clerks and other Officers thereunto be- 
longing, as likewise of all other Officers necessary for the Administration 
of that Gover[n]ment, and particularly that such Salaries be enacted to be 
paid in Sterling or Proclamation Money or in paper Bills of Credit current 
in that Province in proportion to the Value such Bills shall pass at in Ex- 
change for Silver, that thereby the respective Officers may depend on 
some certain income, and not be lyable to have their Stipends varied by 
the uncertain Value of Paper Money, and that in such Act all Officers 
Salaries be fixed to some reasonable yearly Sum, except the Members of 
the Council and Assembly and the Officers attending them, or others 

proved & confirm'd by Us Our Heirs & Successors. And it is Our further Will 6° 
Pleasure that you do not give your Assent to or pass any Act in Our said Province 
of New Jersey under your Government, for payment of Money either to you the 
Governor or to any Lieu* Governor or Commander in chief or to any of the Mem- 
bers of Our Council or to any other Person whatsoever except to Us Our Heirs and 
Successors without a Clause be like wise inserted in such Act declaring that the 
same shall not take effect until the said Act shall have been approv'd and con- 
firm'd by Us Our Heirs or Successors : " New Jersey Documents, vi. 15, § 19. 
For Belcher's instructions, see Ibid., vii. 5. 

16 



242 APPENDIX A, 

whose Attendance on the publick is uncertain, who may have a reasonable 
pay established per Diem during their Attendance only ; And when such 
Revenue shall have been so settled and Provision made as afore said, then 
Our express Will 6° Pleasure is, that neither you Our Governor, nor any 
Governor, Lieuten* Governor, Commander in Chief, or President of Our 
Council of Our said Province of New Jersey for the time being, do give 
your or their Consent to the passing of any Law or Act for any Gift or 
Present to be made to You or them by the Assembly ; and that neither 
you nor they do receive any Gift or Present from the Assembly or others 
on any Account or in any Manner whatsoever, upon pain of Our Highest 
Displeasure and of being recalled from that Our Government. And We 
do further direct and require that this Declaration of Our Royal Will and 
Pleasure be communicated to the Assembly at their first meeting after 
your Arrival in Our said Province, and entred in the Register of Our 
Council and Assembly, that all Persons, whom it may concern, may gov- 
ern themselves accordingly. 

24. And whereas an Act of Parliament was passed in the sixth Year 
of the Reign of Her late Majesty Queen Anne, intituled an act for ascer- 
taining the Rates of foreign Coins in Her Majesty's Plantations in America, 
which Act the respective Governors of all Our Plantations in America 
have from time to time been instructed to observe and carry into execu- 
tion ; And whereas notwithstanding the same, Complaints have been made, 
that the said Act has not been observed, as it ought to have been, in many 
of Our Colonies and Plantations in America, by means whereof many in- 
direct Practices have grown up, and various and illegal Currencies have 
been introduced in several of the said Colonies and plantations, contrary 
to the true intent and meaning of the said Act, and to the prejudice of 
the Trade of Our Subjects ; It is therefore Our Royal Will 6* Pleasure. 
and you are hereby strictly required and commanded, under pain of Our 
highest Displeasure and of being removed from your Government, to take 
the most effectual care for the future, that the said Act be punctually and 
bona fide observed and put in execution, according to the true Intent 
and meaning thereof. 

25. And whereas complaint has been made to Us by the Merchants 
of Our City of London in behalf of themselves and of several others of 
Our good Subjects of Great Britain trading to Our Plantations in Amer- 
ica, that greater Duties and Impositions are laid on their Ships and Goods, 
than on the Ships and Goods of Persons who are Natives and Inhabitants 
of the said Plantations ; It is therefore Our Will &> Pleasure, that you do 
not, on pain of Our Highest Displeasure give your Assent for the future 






INSTRUCTIONS TO BERNARD. 243 

to any Law, wherein the Natives or Inhabitants of Our Province of New 
Jersey, under Your Government are put on a more advantageous footing, 
than those of this Kingdom, or whereby Duties shall be laid upon British 
Shipping, or upon the Product or Manufactures of Great Britain upon any 
Pretence whatsoever. 

26. Whereas Acts have been passed in some of Our Plantations in 
America for laying Duties on the Importation and exportation of Ne- 
groes, to the great Discouragement of the Merchants trading thither from 
the Coast of Africa ; and whereas Acts have likewise been passed for lay- 
ing Duties on Felons imported, in direct Opposition to an Act of Parlia- 
ment passed in the fourth Year of His late Majesty's Reign, for the further 
preventing Robbery, Burglary, and other Felonies, and for the more effec- 
tual Transportation of Felons; it is Our Pleasure, that you do not give 
your assent to or pass any Act imposing Duties upon Negroes imported 
into the said province under your Government, payable by the importer, or 
upon any Slaves exported that have not been sold in the said Province, 
and continued there for the space of twelve Months: It is Our further 

Will e° Pleasure, that you do not give your Assent to or pass any Act 
whatsoever for imposing Duties on the importation of any Felons from 
this Kingdom into the province under Your Government. 

27. You are likewise to examine, what Rates and Duties are charged 
and payable upon any Goods imported or exported within Our Province 
of Nova Caesarea or New Jersey, whether of the growth or Manufacture 
of Our said Province or otherwise ; and you are to suppress the engross- 
ing of Commodities, as tending to the prejudice of that Freedom which 
Trade and Commerce ought to have : And to use your best Endeavours 
for the Improvement of Trade in those parts by settling such Orders and 
Regulations therein, with the advice of the Council, as may be most ac- 
ceptable to the generality of the Inhabitants; and to send unto Our 
Commissioners for Trade and Plantations, in Order to be laid before 
Us, yearly or oftener as occasion may require, the best and most par- 
ticular Account of any Laws that have at any time been made, Manufac- 
tures set up, or Trade carried on in the province under your Government, 
which may in any wise affect the Trade and Navigation of this Kingdom. 

28. You are to transmit Authentick Copies of all Laws, Statutes and 
Ordinances that are now made and in Force which have not yet been 
sent, or which at any time hereafter shall be made or enacted within 
the said province, each of them separately under the Publick Seal unto 
Our said Commissioners for Trade and Plantations within three months 
or by the first Opportunity after their being enacted, together with Dupli- 



244 APPENDIX A. 

cates thereof by the next Conveyance, upon pain of Our hig[h]est Dis- 
pleasure and of the Forfeiture of that year's Salary, wherein you shall at 
any time or upon any pretence whatsoever, omit to send over the said 
Laws, Statutes and Ordinances, as aforesaid, within the 1 time above lim- 
ited, as also of such other penalty as We shall please to inflict ; but if it 
shall happen, that no shipping shall come from the said Province within 
three Months after the making such Laws, Statutes and Ordinances, 
whereby the same may be transmitted, as aforesaid, then the said Laws, 
Statutes and Ordinances are to be transmitted, as aforesaid, by the next 
Conveyance after the making thereof, whenever it may happen, for Our 
Approbation or Disallowance of the same. 

29. And Our further Will 6° Pleasure is, that the Copies and Dupli- 
cates of all Acts that shall be transmitted, as aforesaid, be fairly abstracted 
in the Margin, and that in every Act there be the several Dates or re- 
spective times when the same passed the Assembly and the Council and 
receiv'd Your Assent ; and you are to be as particular as may be in your 
Observations (to be sent to Our Commissioners for Trade and Planta- 
tions) upon every Act, that is to say, whether the same is introductive of 
a New Law, declaratory of a former Law, or does repeal a law then be- 
fore in being, And you are likewise to send to Our said Commissioners 
the reasons for the passing of such law, unless the same do fully appear 
in the preamble of the said Act. 

30. You are to require the Secretary of Our said Province or his 
Deputy for the time being to furnish you with Transcripts of all such 
Acts and publick Orders as shall be made from time to time, together 
with a Copy of the Journals of the Council ; and that all such transcripts 
and Copies be fairly abstracted in the Margins, to the end the same 
may be transmitted to Our Commissioners for Trade and Plantations, as 
above directed, in Order to be laid before Us ; which he is duly to per- 
form upon Pain of incurring the Forfeiture of his place. 

31. You are also to require from the Clerk of the Assembly or other 
proper Officer transcripts of all the said Journals, and other proceedings 
of the said Assembly ; and that all such transcripts be fairly abstracted 
in the Margins, to the end the same may in like manner be transmitted, 
as aforesaid. 

32. Whereas it is necessary that Our Rights and Dues be preserved 
and recovered, and that speedy and effectual Justice be administred in 
all Cases relating to Our Revenue ; you are to take Care that a Court of 
Exchequer be called and do meet at all such times as shall be needfull ; 
and you are upon your Arrival to inform us by Our Commissioners for 



INSTRUCTIONS TO BERNARD. 245 

Trade and Plantations, whether Our Service may require that a Constant 
Court of Exchequer be settled and established there. 

$5. You shall not erect any Court or Office of Judicature not before 
erected or established, nor dissolve any Court or Office already erected 
or established without Our especial Order. But in regard We have been 
informed, that there is a great Want of a particular Court for determining 
of small Causes, you are to recommend it to the Assembly of Our said 
Province, that a Law be passed, if not already done, for the constituting 
such Court or Courts for the Ease of Our Subjects there. 

34. And whereas frequent Complaints have been made to Us of great 
Delays and undue proceedings in the Courts of Justice in several of Our 
Plantations, whereby many of Our Subjects have very much suffered ; and 
it being of the greatest importance to Our Service and to the Welfare 
of our Plantations, that Justice be every where speedily and duly admin- 
istered, and that all Disorders, Delays and undue Practices in the Ad- 
ministration thereof be effectually prevented ; We do particularly require 
you to take especial Care, that in all Courts, where you are authorized 
to preside, Justice be impartially administered, and that in all other 
Courts established within Our said province all Judges and other Per- 
sons therein concerned do likewise perform their several Duties without 
any Delay or partiality. 

35. You are to take Care that no Man's Life, Member, Freehold or 
Goods be taken away or harmed in Our said province, otherwise than 
by established and Known Laws, not repugnant to, but as much as may 
be agreeable to, the Laws of this Kingdom. 

36. It is Our further Will 6° Pleasure, that no persons be sent as 
Prisoners from [to] this Kingdom, from New Jersey without sufficient 
Proofs of their Crimes, and that Proof transmitted along with the said 
Prisoners. 

37. You shall endeavour to get a Law passed (if not already done) for 
the restraining of any Inhuman Severity, which by ill Masters, or Over- 
seers may be used toward their Christian Servants, and their Slaves ; and 
that Provision be made therein, that the willfull killing of Indians and ne- 
groes may be punish'd with Death, and that a fit Penalty be imposed for 
the maiming of them. 

38. You are to take Care that all Writs be issued in Our Name through- 
out Our said Province. 

39. Our Will &* Pleasure is, that you or the Commander in Chief of 
Our said province for the time being, do in all civil Causes, on Applica- 
tion being made to you or the Commander in Chief for the time being, 



246 APPENDIX A. 

for that purpose, permit and allow Appeals from any of the Courts of 
common Law in Our said province unto You or the Commander in Chief 
or the Council of our said Province ; and you are for that purpose to 
issue a Writ in the manner which has usually been accustomed, return- 
able before yourself and the Council of Our said Province, who are to pro- 
ceed to hear and determine such Appeal, wherein such of Our Council 
[as] shall be at that time Judges of the Court, from whence such Appeal 
shall be so made to you Our Captain General or to the Commander in 
Chief for the time being, and to Our said Council, as aforesaid, shall not 
be permitted to vote upon the said Appeal ; but they may nevertheless 
be present at the hearing thereof to give the Reasons of the Judgement 
given by them in the Causes wherein such Appeals shall be made ; pro- 
vided nevertheless that, in all such Appeals, the Sum or Value appealed 
for, do exceed the Sum of three hundred pounds Sterling, and that Se- 
curity be first duly given by the Appellant to answer such Charges as shall 
be awarded, in Case the first Sentence be affirmed, and if either party 
shall not rest satisfyed with the judgment of you or the Commander in 
Chief for the time being and Council, as aforesaid, Our Will 6° Pleasure 
is, that they may then appeal unto Us in Our privy Council, provided 
the Sum or Value so appealed for unto Us exceed five hundred pounds 
Sterling, and that such Appeals be made within fourteen days after Sen- 
tence, & good Security given by the Appellant, that he will effectually 
prosecute the same, and answer the Condemnation, as also pay such 
Costs and Damages as shall be awarded by Us, in Case the Sentence of 
you or the Commander in Chief for the time being and Council be af- 
firmed ; provided nevertheless, where the matter in question relates to 
the taking or demanding any Duty payable to Us, or to any Fee of Office, 
or annual Rent or other such like matter or thing, where the Rights in 
future may be bound, in all such cases you are to admit an Appeal to Us 
in Our privy Council, though the immediate Sum or value appealed for 
be of a less Value ; and it is Our further Will &* Pleasure, that in all 
cases whereby [where by] your Instructions, you are to admit Appeals to 
Us in Our privy Council, execution be suspended until the final Determi- 
nation of such Appeals, unless good and sufficient Security be given by 
the Appellee to make ample Restitution of all that the Appellant shall 
have lost by means of such judgment or Decree, in case upon the Deter- 
mination of such Appeal such Decree or Judgment should be reversed, 
and Restitution awarded to the Appellant. 

40. You are also to permit Appeals to Us in Council in all Cases of 
Fines imposed for Misdemeanors, provided the Fines so imposed amount 



INSTRUCTIONS TO BERNARD. 247 

to or exceed the Value of £2 00 Sterling, the Appellant first giving good 
security, that he will effectually prosecute the same, and answer the Con- 
demnation if the Sentence by which such Fine was imposed in Our said 
province of New Jersey, shall be confirmed. 

41. You shall not appoint any person to be a Judge or Justice of the 
peace without the Advice and Consent of at least three of Our Council 
signified in Council ; nor shall you execute yourself or by Deputy any of 
the said Offices ; And it is Our further Will 6° Pleasure, that all Com- 
missions to be granted by you to any person or persons to be Judges, 
Justices of the Peace, or other necessary Officers be granted during 
Pleasure only. 

42. You shall not displace any of the Judges, Justices, Sheriffs or other 
Officers or Ministers within Our said Province without good and sufficient 
cause, which you shall signify in the fullest and most distinct manner to 
Our said Commissioners for Trade and Plantations, in order to be laid 
before Us, by the first Opportunity after such Removal. 

43. You shall not suffer any Person to execute more Offices than one 
by Deputy. 

44. You are, with the Advice and Consent of Our said Council, to take 
especial Care to regulate all Salaries and Fees belonging to places, or 
paid upon Emergencies, that they be within the Bounds of Moderation ; 
and that no exaction be made on any Occasion whatsoever ; as also that 
all Tables of Fees be publickly hung up in all places where such Fees are 
to be paid ; and you are to transmit Copies of all such Tables of Fees to 
our Commissioners for Trade and Plantations, in order to be laid before 
Us, as aforesaid. 

45. Whereas there are several Offices in Our Plantations, granted under 
Our great Seal of this Kingdom, and that Our Service may be very much 
prejudiced by reason of the absence of the Patentees, and by their ap- 
pointing Deputies not fit to officiate in their stead, you are therefore, upon 
your Arrival, to inspect such of the said Offices as are in your Government, 
and to enquire into the Capacity and behaviour of the Persons now exer- 
cising them, and to report thereupon to Our Commissioners for Trade and 
Plantations, what you think fit to be done or altered in relation there- 
unto ; and you are upon the misbehaviour of any of the said Patentees, 
or their Deputies, to suspend them from the Execution of their places, 
till you shall have represented the whole matter and receiv'd Our Direc- 
tions therein ; and in case of the Death of any such Deputy, It is Our 
express Will 6° Pleasure, that you take Care the Person appointed 
to execute the place, untill the Patentee can be informed thereof and 



248 APPENDIX A. 

appoint another Deputy, do give sufficient Security to the Patentee, or 
in case of Suspension to the person suspended, to be answerable to him 
for the Profits accruing during such interval by Death or during suspen- 
sion, in Case we shall think fit to restore him to his place again. It is 
nevertheless Our Will &> Pleasure, that the person executing the place 
during such Suspension, shall, for his Encouragement receive the same 
profits as the Person dead or suspended did receive ; And it is Our fur- 
ther Will & Pleasure that in Case of the Suspension of a Patentee, the 
person appointed by you to execute the Office, during such Suspension, 
shall, for his encouragement, receive a Moiety of the Profits which would 
otherwise [have]* accrued and become due to such patentee, giving Se- 
curity to such Patentee to be answerable to him for the other Moiety, in 
case We shall think fit to restore him to his place again : And it is Our 
further Will &> Pleasure that you do countenance and give all due en- 
couragement to all Our Patent Officers, in the enjoyment of their legal 
and accustomed Fees, Rights, Priviledges, and Emoluments, according 
to the true Intent and meaning of their Patents. 

46. You shall not, by Colour of any Power or Authority hereby or 
othepwise granted or mention'd to be granted unto you, take upon you 
to give, grant or dispose of any Office or place within Our said Province, 
which now is or shall be granted under the great Seal of Great Britain or 
to which any person is or shall be appointed by Warrant under Our Signet 
or Sign Manual, any otherwise than that you may, upon the Vacancy of 
any such Office or Place, or Suspension of any such Officer by you, as 
aforesaid, put in any fit person to officiate in the interval, till you shall 
have represented the matter unto Our Commissioners for Trade and 
Plantations, in order to be laid before us, as aforesaid, which you are to 
do by the first Opportunity, and untill the said Office or Place be dis- 
posed of by Us, our Heirs or Successors, under the Great Seal of Great 
Britain, or until some Person shall be appointed thereto under Our Signet 
or Sign Manual, or that Our further Directions be given therein. 

47. And whereas several Complaints have heretofore been by made 
[made by] the Surveyor General and other Officers of Our Customs in 
Our Plantations in America, that they have been frequently obliged to 
serve on Juries and personally to appear in Arms, whenever the Militia 
is drawn out, and thereby are much hindred in the Execution of their 
Employments, Our Will and Pleasure is, that you take effectual Care and 
give the necessary Directions, that the several Officers of Our Customs 
be excused and exempted from serving on any Juries. 

48. And whereas the Surveyors General of Our Customs in the Plan- 



INSTRUCTIONS TO BERNARD. 249 

tations are impower'd in case of the Vacancy of any our Offices of the 
Customs by Death, Removal or otherwise, to appoint other Persons to 
execute such Offices untill they receive further Directions from Our 
Commissioners of Our Treasury, or Our High Treasurer or Commission- 
ers of Our Customs for the time being, but in regard the Districts of the 
said Surveyors General are very extensive, and that they are required at 
proper times to visit the Officers in the several Governments under their 
Inspection, and that it may happen, that some of the Officers of Our 
Customs in the Province of Nova Caesarea or New Jersey, may dye at 
the time when the Surveyor is absent in some distant part of his Dis- 
trict, so that he cannot receive Advice of such Officer's Death within a 
reasonable time and thereby make Provision for carrying on the Service, 
by appointing some other Person in the room of such Officer who may 
happen to die, therefore that there may be no delay given on such 
Occasion to the Masters of Ships or Merchants in their Dispatches, It 
is Our further Will cV Pleasure, in case of such Absence of the Sur- 
veyor General, or if he should happen to die, and in such Cases only, 
that upon the Death of any Collector of Our Customs within that Our 
Province, you shall make choice of a Person of Known Loyalty, Ex- 
perience, Diligence and Fidelity, to be imploy'd in such Collectors 
room for the purposes aforesaid, untill the Surveyor General of Our 
Customs shall be advised thereof, and appoint another to succeed in 
their places or that further Directions shall be given therein by Our 
Commissioners of Our Treasury, or Our High Treasurer, or by the 
Commissioners of Our Customs for the time being, which shall be first 
signified, taking Care that you do not* under pretence of this Instruc- 
tion, interfere with the Powers and Authorities given by the Commis- 
sioners of Our Customs to the said Surveyors General, when they are 
able to put the same in Execution. 

49. Whereas it is convenient for Our Service, that all the Surveyors 
Gen! of Our Customs in America for the time being should be admitted 
to sitt and vote in the respective Councils of Our several Islands and 
Provinces within their Districts as Councillors extraordinary, during the 
time of their Residence there, We have therefore thought fit to constitute 
and appoint, and do hereby constitute and appoint the Surveyor General 
of Our Customs for the Northern District and the Surveyor General ot 
Our Customs within the said District for the time being, to be Councillors 
extraordinary in Our said Province. And it is Our Will &* Pleasure, 
that he and they be admitted to sit and vote in the said Council, as 
Councillors extraordinary, during the time of his or their Residence 



250 APPENDIX A. 

there ; But it is Our Intention, if thro' length of time the said Sur- 
veyor General or any other Surveyor General should become the senior 
Councillor in Our said Province, that neither he nor they shall by virtue 
of such Seniority, be ever capable to take upon him or them the Ad- 
ministration of the Government there, upon the Death or Absence of 
Our Captains Gen! or Governors in chief for the time being ; but when- 
ever such Death or Absence shall happen, the Government shall devolve 
upon the Councillor next in seniority to the Surveyor General, unless 
We should hereafter think it for Our Royal Service to nominate the said 
Surveyor General or any other of Our said Surveyors General Councillors 
in ordinary in any of Our Governments within their Survey, who shall not 
in the [that] Case be excluded any Benefit which attends the Seniority 
of their Rank in the Council. 

50. It is Our further Will 6° Pleasure, and you are hereby required 
by the first Opportunity to move the Assembly of Our said Province un- 
der your Government, that they provide for the Expence of making Copies 
for the Surveyor General of Our Customs in the said District for the time 
being, of all Acts and Papers which bear any relation to the Duty of 
his Office ; and in the mean time you are to give Orders, that the said 
Surveyor General for the time being, as aforesaid, be allowed a free In- 
spection in the publick Offices within your Government of all such Acts 
and papers without paying any Fee or reward for the same. 

5 1 . You are to transmit unto Our Commissioners for Trade and Plan- 
tations, with all convenient speed, in Order to be laid before Us, a par- 
ticular Account of all Establishments of Jurisdictions, Courts, Offices and 
Officers, Powers, Authorities, Fees and Privileges, granted or settled or 
which shall be granted or settled within Our said Province, together with 
an Account of all the Expences attending the Establishments of the said 
Courts, and of such Funds as are settled and appropriated for dis- 
charging such Expences. 

52. Our Will and Pleasure is, that for the better quieting the Minds of 
Our good Subjects Inhabitants of Our said Province, and for settling the 
Properties and Possessions of all Persons concerned therein t either as 
General Proprietors of the Soil, under the first original Grant of the said 
Province made by the late King Charles the Second to the late Duke of 
York, or as particular Purchasers of any Parcels of Land from the gen- 
eral Proprietors, you shall propose to the General Assembly of Our said 
Province the passing of such Act or Acts whereby the Right or Property of 
the said General Proprietors to the soil of Our said Province may be con- 
firmed to them according to their respective Rights and Titles together with 



INSTRUCTIONS TO BERNARD. 251 

all such Quit Rents, as have been reserved or are or shall become due to 
the said General Proprietors from the Inhabitants of Our said Province 
and all such Priviledges as are expressed in the Conveyances, made by 
the said Duke of York excepting only the Right of Government which 
remains in Us, And you are further to take Care that by the said Act or 
Acts so to be passed the particular Titles and Estates of all the Inhabi- 
tants of that Province and other purchasers, claiming under the said Gen- 
eral Proprietors be confirmed & settled, as of Right does appertain, 
under such Obligations as shall tend to the best and speedyest Improve- 
ment or Cultivation of the same provided always that you do not Con- 
sent to any Act or Acts to lay any Tax upon unprofitable Lands. 

53. You shall not permit any other person or persons besides the said 
general Proprietors or Agents to purchase any Lands whatsoever from 
the Indians within the Limits of their Grants. 

54. You are to permit the Surveyors and other Persons appointed by 
the forementioned General Proprietors of the Soil of that Province for 
surveying and recording the Surveys of Land granted by and held of them 
to execute accordingly their respective Trusts and you are likewise to 
permit and if need be aid and assist such other Agent or Agents as shall 
be appointed by the said Proprietors for that End to collect and receive 
the Quit Rents which are or shall be due unto them from the particular 
Possessors of any Parcels or Tracts of Land, from time to time, provided 
always that such surveyors Agents or other Officers appointed by the said 
General Proprietors do not only take proper Oaths for the due Execution 
and performance of their respective Offices or Employments And give 
good and sufficient Security for their so doing, but that they likewise take 
the oaths mentioned in the foresaid Act entituled, an Act for the further 
Security of His Majesty's Person and Government and the Succession of 
the Crown in the Heirs of the late princess Sophia being protestants and 
for the extinguishing the Hopes of the Pretended Prince of Wales and his 
open and Secret Abettors : as also make and subscribe the Declaration 
aforesaid and you are more particularly to take Care that all Lands pur- 
chased from the said Proprietors be cultivated and improved by the 
possessors thereof, And you are to take Care that no Fees be exacted or 
taken by any of the Officers under you, for the Grants of Lands made by 
the Agents of the Proprietors, which Agents are to deliver over to you in 
Council Duplicates of all such Grants to be registred in Our Council 
Books. 

55. Whereas for some Years past the Governors of some of Our Plan- 
tations have seized and appropriated to their own use the produce of 



252 APPENDIX A. 

Whales of several kinds taken upon those Coasts upon pretence that 
Whales are Royal Fishes, which tends greatly to discourage this Branch 
of Fishery in Our Plantations and prevent Persons from settling there, it 
is therefore Our Will & Pleasure that you do not pretend to any such 
Claim nor give any manner of discouragement to the fishery of Our Sub- 
jects upon the Coast of the Province under your Government but on the 
Contrary that you give all possible Encouragement thereto. 

56. You shall not remit any fines or Forfeitures whatsoever above 
the Sum of ten pounds, nor dispose of any Forfeitures whatsoever, until 
upon signifying unto Our Commissioners of Our Treasury or Our High 
Treasurer for the [time ?] # being, and to Our Commissioners for Trade 
and Plantations the Nature of the Offence, and the Occasion of such 
Fines and Forfeitures with the particular Sums or Value thereof (which 
you are to do with all speed) you shall have receiv'd Our Directions 
therein, but you may in the mean time suspend the payment of the said 
Fines and Forfeitures. 

5 7. Whereas We have thought it necessary for Our Service to consti- 
tute and appoint a Receiver General of the Rights and Perquisites of the 
Admiralty. It is therefore Our Will &> Pleasure that you be aiding and 
assisting to the said Receiver General ; his Deputy or Deputies in the 
Execution of the said Office of Receiver General ; And we do hereby 
require and enjoin you to make up your Accounts with him, his Deputy 
or Deputies of all Rights of Admiralty as you or your Officers have or 
shall or may receive, and to pay over to the said Receiver General, his 
Deputy or Deputies for Our Use all such Sum or Sums of Money, as 
shall appear upon the foot of such Accounts to be and remain in your 
hands, or in the Hands of any of your Officers ; And whereas Our said 
Receiver General is directed, in case the Parties Chargeable with any 
part of such Our Revenue, refuse, neglect or delay payment thereof, by 
himself or sufficient Deputy to apply to Our Governors, Judges, Atter- 
nies General or any other Our Officers or Magistrates to be aiding and 
assisting to him in recovering the same ; it is therefore Our Will 6** 
Pleasure that you Our Governor, Our Judges, Our Attornies General 
and all other Our Officers whom the same may concern, do use all law- 
full Authority for the recovering and levying thereof. 

58. You are to permit a Liberty of Conscience to all Persons (except 
Papists) so they be contented with a quiet and peaceable enjoyment 
of the same, not giving Offence or Scandal to the Government. 

59. You shall take especial Care that God Almighty be devoutly 
and duly served throughout your Government, the Book of Common 



INSTRUCTIONS TO BERNARD. 253 

Prayer as by Law established, read each Sunday and Holy day and the 
blessed Sacrament administred according to the Rites of the Church of 
England. 

60. You shall be carefull that the Churches already built there be well 
and orderly Kept, and that more be built, as the province shall by God's 
blessing be improved, and that besides a competent Maintenance to be 
assign'd to the Minister of each orthodox Church, a Convenient house 
be built at the common Charge for each Minister and a competent pro- 
portion of Land assigned to him for a Glebe and Exercise of His In- 
dustry, and you are to take Care that the parishes be bounded and 
settled as you shall find most convenient for the accomplishing this 
good Work. 

61. You are not to prefer any Minister to any Ecclesiastical Benefice 
in that Our province without a Certificate from the Right Reverend 
Father in God the Lord Bishop of London of his being conformable to 
the Doctrine and Discipline of the Church of England and of a good 
Life and Conversation, and if any person already preferr'd to a Benefice 
shall appear to you to give Scandal either by his Doctrine or Manners 
you are to use the proper and usual means for the removal of him. 

62. You are to give order that every Orthodox minister within your 
Government be one of the Vestry in his respective parish, and that no 
vestry be held without him except in Case of Sickness, or that after 
Notice of a Vestry summon'd he omit to Come. 

6$. You are to enquire whether there be any Minister within your 
Government who preaches and administers the Sacrament in any Ortho- 
dox Church or Chapel without being in due Orders & to give account 
thereof to the said Lord Bishop of London. 

64. A?id to the End the Ecclesiastical Jurisdiction of the said Lord 
Bishop of London may take place in Our said Province so far as con- 
veniently may be. We do think fit that you give all Countenance & En- 
couragement to the Exercise of the Same, except only the Collating to 
Benefices, Granting Licences for marriages, and probate of Wills, which 
we have reserved to you Our Governor and the Commissioner [Com- 
mander?] in Chief of Our said province for the time being. 

65. We do further direct that no Schoolmaster be henceforth per- 
mitted to come from England and to keep School in the said province 
without the Licence of the said Bishop of London, and that no other 
person now there or that shall come from other parts, shall be admitted 
to keep School in that Our said province of New Jersey, without your 
Licence first obtained. 



254 APPENDIX A, 

66. And you are to take especial Care, that a Table of Marriages 
established by the Canons of the Church of England be hung up in 
every Orthodox Church and duly observed And you are to endeavor to 
get a Law passed in the Assembly of Our said Province (if not already 
done) for the strict Observation of the said Table. 

67. The Right Reverend Father in God Edmund late Lord Bishop 
of London having presented a pertition to his late Majesty Our Royal 
Father, humbly beseeching him to send Instructions to the Governors of 
all the several plantations in America, that they cause all Laws already 
made against Blasphemy, prophaneness, Adultry, Fornication, Polygamy, 
Incest, prophanation of the Lord's day, Swearing and Drunkeness in their 
respective Governments to be vigourously executed. And We thinking 
it highly just that all persons, who shall offend in any of the particulars 
aforesaid, should be prosecuted and punished for their said Offences. 
It is therefore Our Will and Pleasure, that you take due Care for the 
punishment of the forementioned Vices, and that you earnestly recom- 
mend it to the Assembly of New Jersey to provide effectual Laws for 
the Restraint and punishment of all such of the aforementioned Vices 
against, which no Laws are as yet provided, and also you are to use 
your Endeavors to render the Laws in being more effectual by pro- 
viding for the punishment of the aforementioned Vices by presentment 
upon Oath to be made to the temporal Courts by the Church Wardens 
of the several parishes, at proper times of the year to be appointed for 
that Purpose. And for the further discouragement of vice and En- 
couragement of Virtue and good Living (that by such Example the 
Infidels may be invited and desire to embrace the Christian Religion) 
you are not to admit any person to publick Trusts and Employments 
in the said Province under your Government whose ill Fame and Con- 
versation may occasion Scandal. And it is Our further Will and 
Pleasure that you recommend to the Assembly to enter upon proper 
Methods for the erecting and maintaining of Schools, in Order to the 
training up of Youth to Reading and to a necessary Knowledge of 
the principals of Religion, and you are also with the Assistance of the 
Council and Assembly to find out the best means to facilitate and en- 
courage the Conve[r]sion of Negroes and Indians to the Christian 
Religion. 

68. You shall send unto Our Commissioners for Trade and Plantations 
by the first Conveyance in order to be laid before us, an Account of the 
present Number of Planters and Inhabitants, Men, Women, and Children, 
as well Masters as Servants free and unfree and of the Slaves in Our said 



INSTRUCTIONS TO BERNARD. 255 

province as also an yearly Account of the increase or decrease of them 
and how many of them are fit to bear Arms in the Militia of Our said 
province. You shall also cause an exact Account to be kept of all Per- 
sons born and christned and buried, and you shall yearly send fair Ab- 
stracts thereof to Our Commissioners for Trade and Plantations as 
aforesaid. 

69. And We do further expressly command and require you to give 
unto Our Commissioners for Trade & plantations once in every year the 
best Account you can procure of what number of Negroes Our said 
province is yearly supplied with. 

70. You shall take Care that all planters and Christian Servants be well 
and fitly provided with Arms and that they [be] listed under good Offi- 
cers and when and as often as shall be thought fit mustred and trained 
whereby they may be in a better readyness for the defence of Our said 
province under your Government. 

7 1 . You are to take especial care that neither the frequency nor un- 
reasonableness of their Marches, Musters, and trainings be an unneces- 
sary Impediment to the affairs of the Inhabitants. 

72. You shall not upon any Occasion whatsoever establish or put in 
Execution any Articles of War or other Law Martial upon any of Our 
Subjects, Inhabitants of Our said province without the Advice and 
Consent of Our Council there. 

73. And whereas there is no Power given you by your Commission 
to execute Martial Law in time of Peace upon Soldiers in pay and that 
nevertheless it may be necessary that some Care be taken for the keeping 
good Discipline amongst those that We may at any time think fit to send 
into Our said province (which may properly be provided for by the 
legislative power of the same) you are therefore to recommend to the 
general Assembly of Our said province that they prepare such Act or 
Law for the punishing of Mutiny, Desertion and false Musters and for 
the better preserving of good Discipline amongst the said Soldiers, as 
may best answer those Ends. 

74. You are to encourage the Indians upon all Occasions so as to 
induce them to trade with Our Subjects rather than any others of 
Europe. 

75. And for the greater Security of Our province of New Jersey you 
are to appoint fit Officers and Commanders in the several parts of the 
Country bordering upon the Indians who upon any Invasion may raise 
Men and Arms to oppose them till they shall receive your Directions 
therein. 



256 APPENDIX A. 

76. And whereas you will receive from Our Commissioners for Exe- 
cuting the Office of High Admiral of Great Britain and of Our plantations 
a Commission of Vice Admiralty of Our said province of New Jersey, You 
are hereby required and directed carefully to put in execution the several 
powers thereby granted you. 

77. And there having been great Irregularities in the Manner of 
granting Commissions in the plantations to private Ships of War. You 
are to govern yourself whenever there shall be occasion according to the 
Commissions and Instructions granted in this Kingdom, Copies whereof 
will herewith be delivered you. But you are not to grant Commissions 
of Marque or Reprizal against any Prince or State or their Subjects, in 
Amity with us to any Person whatsoever without Our Especial Command, 
and you are to oblige the Commanders of all Ships having private Com- 
missions to wear no other Colours than such as are described in Our 
Order of Council of the 7 th of Jan7 1 730 in relation to Colours to be 
worn by all Ships and Vessels except Our own Ships of War. A Copy 
of which Order will be herewith be \sic\ delivered to you. 

78. Whereas we have been informed that during the time of War Our 
Enemies have frequently got Intelligence of the State of Our plantations 
by letters from private persons to their Correspondents in Great Britain 
taken on Board Ships coming from the plantations, which may be of 
dangerous Consequence if not prevented for the future. Our Will and 
Pleasure is, that you signify to all Merchants, planters and others that 
they be very Cautious in time of War, in giving any Account by Letters 
of the publick State and Condition of Our said province of New Jersey, 
and you are further to give Directions to all Masters of Ships or other 
persons to whom you may intrust your Letters, that they put such Letters 
in a Bag with a sufficient Weight to sink the same immediately, in Case 
of imminent danger from the Enemy. And you are also to let the Mer- 
chants and planters know how greatly it is for their Interest that their 
Letters should not fall into the Hands of the Enemy, and therefore that 
they should give the like Orders to the Masters of Ships in relation 
to their Letters. And you are further to advise all Masters of Ships 
that they do sink all Letters in Case of Danger in the manner before 
mentioned. 

79. And whereas the Merchants and planters in America have in time 
of War corresponded and traded with Our Enemies and carried Intelli- 
gence to them, to the great prejudice and Hazard of the English planta- 
tions. You are therefore by all possible Methods to endeavour to hinder 
all such trade and Correspondence in time of War. 



INSTRUCTIONS TO BERNARD. 257 

80. And whereas Commissions have been granted unto several persons 
in Our respective plantations in America, for the trying of pirates in those 
parts pursuant to the Acts for the more effectual Suppression of Piracy, 
and by a Commission already sent to Our province of New Jersey, you 
as Captain General and Governor in Chief of Our said province are im- 
powered together with others mentioned, to proceed accordingly in refer- 
ence to Our said province, Our Will 6° Pleasure Is, that in all matters 
relating to pirates, you govern yourself according to the Intent of the 
Acts & Commission aforementioned. 

81. Whereas it is absolutely necessary, that we be exactly informed of 
the State of Defence of all Our plantations in America, as well in relation 
to the Stores of War that are in each plantation, as to the forts and For- 
tifications there, and what more may be necessary to be built for the De- 
fence and Security of the same. You are so soon as possible to prepare 
an Account thereof with relation to Our said province of Nova Caesarea 
or New Jersey in the most particular manner, and you are therein to 
express the present State of the Arms, Ammunition and other Stores of 
War belonging to the province either in any publick Magazines or in the 
hands of private persons together with the State of all places either already 
fortified or that you judge necessary to be fortifyed for the Security of Our 
said province, and you are to transmit the said Accounts to Our Commis- 
sioners for Trade and plantations, in order to be laid before us, as also a 
Duplicate thereof to Our Master General or principal Officers of Our 
Ordnance, which Accounts are to express the particulars of Ordnance, 
Carriages, Ball, Powder, and all other sorts of Arms and Ammunition in 
Our publick Stores at your said Arrival, and so from time to time of what 
shall be sent to you b [or] bought with publick Money and to specify 
the time of the Disposal and the occasion thereof and other like Ac- 
counts half yearly in the same manner. 

82. Whereas divers Acts have from time to time been passed in several 
of Our Colonies in America imposing a Duty of powder on every Vessel 
that enters and clears in the said Colonies, which has been of great Service 
in furnishing the Magazines with powder for the Defence of Our said Colo- 
nies in time of Danger : it is Our Express Will 6* Pleasure, and you are 
hereby required and directed to recommend to the Assembly of New Jer- 
sey to pass a Law for Collecting a powder Duty, and that the Law for that 
purpose be made perpetual, that a certain time in the said Act, not ex- 
ceeding twelve months, be allowed for giving Notice thereof to the several 
masters of Vessels trading to New Jersey, and that for the more ample 
Notification thereof, a proclamation be also published in your said Gov- 

17 



258 APPENDIX A. 

eminent declaring that from and after the Expiration of the time limited 
by the said Act for such Notice, no Commutation shall be allow'd of but 
upon evident Necessity, which may some time happen, whereof you or 
Our Commander in Chief for the time being are to be the Judge ; in 
which Case the said Master shall pay the full price Gunpowder sells for 
there, and the monies so collected shall be laid out as soon as may be 
in the purchase of Gunpowder ; and you are also to transmit every six 
months to Our Commissioners for Trade and Plantations, an Account of 
the particular Quantities of Gunpowder collected under the said Act in 
your Government ; and likewise a Duplicate thereof to the Master Gen- 
eral or principal Officers of Our Ordnance. 

83. You are to take especial Care, that fit Storehouses be settled 
throughout Our said province for receiving and keeping of Arms, Am- 
munition, and other publick Stores. 

84. And in Case of any distress of any of Our plantations, you shall 
upon Application of the respective Governors to you, assist them with 
what Aid the Condition and safety of your Government will permit; 
and more particularly in Case Our province of New York be at any time 
attacked* by an Enemy, the Assistance you are to contribute towards the 
Defence thereof, whether in Men or Money, is to be according to the 
Quota or Repartition which has already been signified to the Inhabitants 
of Our foresaid province under your Government, or according to such 
other Regulation as We shall hereafter make in that behalf, and shall sig- 
nify to you or the Commander in Chief of Our said province for the time 
being. 

85. You shall transmit unto Our Commissioners for Trade and planta- 
tions, by the first Opportunity, to be laid before us, a Map with the ex- 
act Description of Our whole Territory under your Government, and of 
the several plantations that are upon it. 

86. You are from time to time to give an Account, as before directed, 
what Strength your bordering Neighbours have, be the[y] Indians or 
others, by Sea & Land & of the Condition of their plantations, & what 
Correspondence you do keep with them. 

87. You are likewise from time to time to give unto Our Commission- 
ers for Trade and Plantations, as aforesaid, in order to be laid before us, 
an Account of the Wants and Defects of Our said province ; what are 
the Chief Products thereof, what new improvements are made therein by 
the Industry of the Inhabitants or planters ; and what further Improve- 
ments you conceive may be made, or Advantages gained by trade, and 
in what manner We may best Advance the same. 



INSTRUCTIONS TO BERNARD. 259 

8S. If any thing shall happen that may be of Advantage and Security 
to Our said province, which is not herein by Our Commission provided 
for, We do hereby allow unto you, with the Advice and Consent of Our 
Council, to take order for the present therein, giving unto Our Com- 
missioners for Trade and plantations speedy notice thereof, in order to 
be laid before Us, that so you may receive Our Ratification, if We shall 
approve of the same, provided always that you do not by Colour of any 
power or Authority given you, commence or declare War without Our 
Knowledge and particular Commands therein, except it be against Indians 
upon Emergencies, wherein the Consent of Our Council shall be.had and 
speedy Notice given thereof unto Our Commissioners for Trade and. plan- 
tations in Order to be laid before Us. 

89. And whereas great Prejudice may happen to Our Service and the 
Security of Our said province under your Government by your Absence 
from those parts, you are not upon any pretence whatsoever, to come 
to Europe from your Government, without first having obtained leave 
for so doing under Our Signet and Sign Manual, or by Our Order in 
Our privy Council. 

90. And whereas We have been pleased by Our Commission to 
direct [that] , in Case of your Death or Absence from our said province, 
and in Case there be at that time no person upon the place commis- 
sioned or appointed by Us, to be Our Lieutenant Governor or Com- 
mander in Chief, the eldest Councillor whose name is first placed in 
these Instructions to you, and who shall be at the time of your Death 
or Absence residing within our said province, shall take upon him the 
Administration of the Government and execute Our said Commission and 
Instructions and the several powers and Authorities therein contained, 
in the manner therein directed ; It is nevertheless Our express Will 
a?id Pleasure, that in such Case the said eldest Councillor, or President 
shall forbear to pass any Act or Acts [but] such as shall be immediately 
necessary for the peace and Wellfare of Our said province without Our 
particular Order for that purpose, and that he shall not take upon him to 
disolve the Assembly then in being, nor to remove or suspend any of 
the Members of Our said Council nor any Judges, Justices of the peace 
or other Officers civil or military without the Advice or [and] Consent 
of at least seven of the Council, and Our said President is to transmit to 
Our Commissioners for Trade and Plantations by the first Opportunity, 
the reasons of such Alterations, signed by himself and Our Council, in 
order to be laid before Us. 

91. And whereas We are willing in the best manner to provide for the 



260 APPENDIX A. 

support of the Government of Our said Province by setting a part suffi- 
cient Allowances to such as shall be Our Governor, Lieutenant Governor, 
Commander in Chief or President of Our Council, residing for the time 
being within the same ; Our Will 6° Pleasure therefore is, that when it 
shall happen that you shall be absent from the Territory of New Jersey 
of which We have appointed you Governor one full moi[e]ty of the 
Salary and of all perquisites and Emoluments whatsoever which would 
otherwise become due, unto you, shall during the time of your Absence, 
from the said Territory be paid and satisfyed unto such Governor, 
Lieutenant Governor, Commander in Chief or President of Our Council, 
who shall be resident upon the place for the time being, which We do 
hereby order and allot unto him, towards his maintenance, and for the 
better support of the Dignity of that Our Government. 

92. And you are upon all Occasions to send unto Our Commissioners 
for Trade and plantations only, a particular Account of all your proceed- 
ings and of the Condition of Affairs within your Government, in order to 
be laid before Us, provided nevertheless whenever any Occurrence shall 
happen within your Government of such a Nature and importance as may 
require Our more immediate Direction by one of Our principal Secretaries 
of State, and also upon all Occasions & in all Affairs wherein you may re- 
ceive Our Orders by one of the principal Secretaries of State, you shall in 
all such Cases transmit to the Secretary of State only, an Account of all 
such Occurrences & of your proceedings relative to such Orders. 1 * 

1 This draft of instructions was approved by an order of council dated April 1, 
1758. The instructions were dated January 31, 1758. See Analytical Index to the 
Colonial Documents of New Jersey (New Jersey Historical Society, Collections, V.), 

345- 

* In the foregoing documents taken from the New "Jersey Documents, the brack- 
eted insertions marked with an asterisk are reproduced from the text as there 
printed. All others in the Appendices have been added by the present editor. 
With this exception and that noted on page 226, all the documents here given fol- 
low the previously printed text as indicated in the heading of each document. 



COMMISSION TO HAMILTON, 2 6l 

6. COMMISSION TO JAMES HAMILTON AS PROPRIETARY 
GOVERNOR OF PENNSYLVANIA, 1759. 

[From Minutes of the Provincial Council of Pennsylvania {Pennsylvania Records), 

viii. 409.] 

THOMAS PENN and RICHARD PENN, true and absolute 
Proprietaries and Governors-in-Chief of the Province of Pennsylvania, 
and Counties of Newcastle, Kent, and Suss[e]x, on Delaware, 

To James Hamilton, Esquire, Greeting: 

Whereas, the late King Charles the second, by his Letters Patent, 
under the Great Seal of England, bearing date the fourth day of march, 
in the Thirty-third year of his Reign, was graciously pleased to grant 
unto William Penn, Esquire, (late Father of the said Thomas Penn and 
Richard Penn, since deceased), His Heirs and Assigns, The said 
Province of Pennsylvania, with large powers, Jurisdictions, and Author- 
ities for the well-Governing, Safety, Defence, and preservation of the 
said Province and the People residing therein, and more particularly to 
do and perform sundry matters and things therein mentioned, either by 
himself and his Heirs, or his or their Deputies or Lieutenants, as by the 
said Letters patent, relation being thereunto had, may more fully appear : 
And Whereas, the late King James the second, before he came to the 
Crown, by the name of James Duke of York and Albany, being rightfully 
possessed of a Certain Tract of Land lying on the West side of the Bay 
and River of Delaware, more commonly called and known by the name 
or Names of the Counties of Newcastle, Kent, and Sussex, on Delaware ; 
and being likewise invested with Sundry Royalty's priviledges, Immunities, 
powers, Jurisdictions, and authorities, for the defence, safety, preservation, 
and well-Governing of the said Tract of Land and the Inhabitants thereof, 
did, by certain Deeds duly executed, and bearing date as therein men- 
tioned, give and grant unto the said William Penn, his Heirs and Assigns, 
the said Tract of Land lying on the West side of the Bay and River of 
Delaware, with all and every the said Royalties, Privileges, Immunities, 
Powers, Jurisdictions, and Authorities which he the said Duke of York 
stood then invested with as aforesaid, as by sitch Deeds relation being 
thereunto had, may more fully appear : And Whereas, we did by our 
Commissions, under our Seals, bearing date the seventh day of May, in 
the year of our Lord, one thousand seven hundred and fifty-six, depute, 
constitute, and appoint William Denny, Esquire, to be Lieutenant Gov- 
ernor of the Said province and Counties, for and during the good pleasure 



262 APPENDIX A. 

of Us and the Survivor of us, and until further Order : Now Know You, 
that We have revoked and determined and by these presents Do revoke 
and determine our said recited Commission, and every Clause, article, 
and Thing therein contained : And further Know You, That we, reposing 
Special Trust and confidence in your Tryed and approved Loyalty to the 
King, and in your prudence, conduct and Integrity, Do, by Virtue of the 
said Letters patent and Deeds, depute, constitute, nominate, and appoint 
you, the said James Hamilton, to be Lieutenant Governor of the said 
province and Counties, Giving and hereby granting unto you full power 
and authority to exercise, execute, and put in practice, in ample manner, 
All and every the powers, Jurisdictions and Authorities, so granted unto 
the said William Penn, his Heirs and Assigns, by the said Letters patent 
and Deeds, as shall be necessary and convenient for the safety, well-being, 
defence, preservation, and well-Governing the said province and Counties 
and the people thereof, hereby comitted and entrusted to your care and 
charge ; And generally, at all Times, and upon all Occasions, when proper 
and convenient, to exercise, do, execute, act and perform all, and all 
manner of powers, authorities, acts, military, and all other matters and 
things whatsoever, requisite and necessary for the good order of Govern- 
ment, for the administering, maintaining, and executing of Justice, and 
for the safety, peace, defence, and preservation of the said province and 
Counties, and the people under your Government and Direction, as fully 
and amply, to all Intents, Constructions, and purposes, as We ourselves 
might or cou[l]d do by Virtue of the said Letters Patent and Deeds or 
any otherwise howsoever, were we personally present ; You following and 
observing such Orders, Instructions, and Directions as you now have, or 
hereafter, from time to time, shall receive from us or our Heirs, To have, 
hold, execute, exercise, and enjoy the said Office or post of Lieutenant 
Governor of the said Province, Jurisdictions and authorities herein- 
before Granted, and all Titles, privileges, pre-eminences, profits, and 
advantages to a Lieutenant Governor and Commander [in] Chief of the 
said province and Counties belonging and therewith usually held and 
enjoyed, unto you, the said JAMES HAMILTON, for and during the 
good pleasure of Us and the Survivor of Us, and until further Order : 
Provided Always, that nothing herein contained shall extend or be 
construed to extend to give you any power or Authority to sett, lett, 
lease out, Grant, Demise, receive, posess, Occupy, or dispose of any 
Manors, Messages, Lands, Tenements, Houses, Gardens, Royalties, 
Rent, Issues, or profits arising, belonging, or accruing unto us or either 
of Us, in the province and Counties aforesaid, or otherwise; Nor to 



COMMISSION TO HAMILTON. 263 

intermeddle or concern yourself therewith, or with any part of the prop- 
erty thereof, or with any Officer or Officers appointed for the manage- 
ment thereof, e[i]ther by placing, displacing, interrupting, or hindering 
any of them in the just Execution of their Offices ; But in Case your 
aid and assistance shall be wanted by them, and desired for our Service, 
Then, and in such Case, You are hereby required to assist them by all 
lawful ways and means to the utmost of your power, any thing herein- 
before contained to the contrary thereof in anywise, notwithstanding. 
And we do hereby strictly Command, charge, and require all persons 
within the said province and Counties, of what degree, quality, state or 
Condition soever, To yield, give, and pay unto you, all Respect, sub- 
mission, and Obedience as Lieutenant Governor of the said province 
and Counties so appointed as aforesaid, as they will answer the contrary 
at their peril. Given under our Hands and Seals at Arms, the Nine- 
teenth day of July, in the Thirty-Third year of the Reign of Our Sov- 
ereign Lord George the Second, by the Grace of God, of Great Britain, 
France, and Ireland, King, Defender of the Faith, and so forth, and in 
the Year of our Lord, One thousand seven hundred and fifty-nine. 

THOS. PENN, [l. s.] 
RICH D PENN, [l. s.] 



264 APPENDIX A. 

7. COMMISSION TO JOHN WENTWORTH AS LIEUTENANT- 
GOVERNOR OF NEW HAMPSHIRE, 1717. 

[From a copy in the Secretary's Office ; printed in New Hampshire Provincial 

Papers, ii. 712.] 

GEORGE R. 

George, by the Grace of God, King of Great Britain, France and 
Ireland, Defender of the Faith, &c. 

To our Trusty and Well-beloved John Wentworth, Esq. Greeting : 
Whereas, by our Commission, under our Great Seal of Great Britain, 
bearing date Fifteenth day of June, 1716, We have constituted and 
appointed Samuel Shute, Esq. our Captain General and Governor in 
Chief in and over our Province of New Hampshire, in New England, 
in America ; and we reposing especial Trust and Confidence in your 
Loyalty, Courage and Circumspection, do, by these presents, constitute 
and appoint you, the said John Wentworth, to be our Lieutenant Gov- 
ernor, to hold, exercise and enjoy the said Place and office for and 
during tfur Pleasure, with all Rights, Privileges, Profits, Perquisites and 
Advantages, to the same belonging or appertaining : And further, in case 
of the Death or absence of the said Samuel Shute, We do hereby author- 
ize and empower you to execute and perform all and singular the Powers 
and Directions contained in our said Commission to the said Samuel 
Shute, and such Instructions as are already or hereafter shall, from time 
to time, be sent unto him ; so nevertheless, that you observe and follow 
such orders and Directions as you shall receive from Us, and from the 
said Samuel Shute, or any Chief Governor of our said Province of New 
Hampshire, for the time being. And all and singular our officers and 
ministers and loving subjects of our said Province, and others whom it 
may concern, are hereby commanded to take due Notice hereof, and to 
give their ready obedience accordingly. 

Given at our Court at Hampton Court, the 12 th day of September, 
1 71 7, in the Fourth year of our Reign. 

By his Majesty's Command, 

J. Addison. 
John Wentworth, Esq. 

Lieutenant Governor of New Hampshire 
in America. 



APPENDIX B. 

LIST OF COMMISSIONS AND INSTRUCTIONS* 

This list includes only documents which are printed in full, excluding summa- 
ries and extracts. The term " instructions " also requires explanation. As used 
here, it means the formal document which, together with the commission, was 
given to each governor on his appointment to his province. Single articles or 
so-called additional instructions which appear from time to time in the records of 
nearly every province are not recorded here. Letters from the home government, 
or from proprietors, are excluded even though they may contain more or less 
formal instructions on many matters connected with the government of the prov- 
ince. It should be said further that all the British colonies are not included in this 
list, but only those which afterwards became part of the United States. 

For form of royal commission, see Stokes, Constitution of the Colonies, 
150. [No names; arbitrary dates.] 

1610. Proprietary commission to Lord La Warr, governor of Virginia : 
Brown, Genesis of the United States, i. 375. 

1 61 8. Proprietary instructions to George Yeardley, governor of Virginia : 
Virginia Magazine of History and Biography, ii. 154. 

1624. Royal commission to Sir Francis Wyatt, governor, and to the 
council of Virginia: Rymer, Foedera, xvii. 618. 

1626. Royal commission to Sir George Yeardley, governor, and to the 
council of Virginia: Rymer, Foedera, xviii. 311. 

1626. Royal instructions to Sir George Yeardley, governor, and to the 
council of Virginia: Virginia Magazine of History and Biography, ii. 393. 

1627. Royal commission to John Harvey, governor, and to the council 
of Virginia: Rymer, Foedera, xviii. 980. 

1635. Proprietary commission to John Winthrop, the younger, governor 
of the Connecticut River : Trumbull, History of Connecticut, i. 497. 

1636. Royal commission to John Harvey, governor, and to the council 
of Virginia : Rymer, Foedera, xx. 3. 

1637. Proprietary commission to Leonard Calvert, governor, and to the 
council of Maryland: Bozman, History of Maryland, ii. 572; Maryland 
Archives, iii. 49. 

1641. Royal commission to Sir William Berkeley, governor, and to the 
council of Virginia: Rymer, Feeder a, xx. 484. 

* This list is reprinted with some revision from the American Historical Review 
for October, 1897. 



266 APPENDIX B. 

[1641.] Royal instructions to Sir William Berkeley, governor of Virginia : 
Virginia Magazine of History and Biography, ii. 281. 

1642. Proprietary commission to Leonard Calvert, governor of Mary- 
land: Bozman, History of Maryland, ii. 621 ; Maryland Archives, iii. 108. 

1644. Proprietary commission to Leonard Calvert, governor of Mary- 
land: Bozman, History of Maryland, ii. 631 ; Maryland Archives, iii. 151. 

1648. Proprietary commission to William Stone, governor of Maryland: 
Bozman, History of Maryland, ii. 642 ; Maryland Archives, iii. 201. 

1656. Proprietary commission to Josias Fendall, governor of Maryland : 
Bozman, History of Maryland, ii. 689; Maryland Archives, iii. 323. 

1660. Proprietary commission to Philip Calvert, governor of Maryland : 
Maryland Archives, iii. 391. 

1 661. Proprietary commission to Charles Calvert, governor of Mary- 
land: Maryland Archives, iii. 439. 

1662. Royal instructions to Sir William Berkeley, governor of Virginia : 
Virginia Magazine of History and Biography, iii. 15. 

1664. Proprietary commission to Richard Nicolls, governor of New 
York : Pennsylvania Archives, 2nd Series, v. 509. 

1665. Proprietary commission to Sir John Yeamans, governor of 
Clarendon County: North Carolina Records, i. 97. 

[1665.] Proprietary instructions to Sir John Yeamans, governor, and to 
the council of Clarendon County : North Carolina Records, i. 95 ; Rivers, 
Sketch of the History of South Carolina, 338. 

1665. Proprietary commission to Philip Carteret, governor of New 
Jersey: New fersey Documents, i. 20. 

1665. Proprietary instructions to Philip Carteret, governor of New 
Jersey: New fersey Documents, i. 21. 

1666. Proprietary commission to Charles Calvert, governor of Mary- 
land : Maryland Archives, iii. 542. 

1667. Proprietary commission to Samuell Stephens, governor of Albe- 
marle County: North Carolina Records, i. 162. 

1667. Proprietary instructions to Samuell Stephens, governor of Albe- 
marle County : North Carolina Records, i. 162. 

1669. Proprietary commission to William Sayle, governor of Carolina 
south and west of Cape Carteret : Rivers, Sketch of the History of South 
Carolina, 340. 

1669. Proprietary instructions to the governor and council at Port 
Royal, Carolina: Rivers, Sketch of the History of South Carolina, 347. 

1670. Proprietary instructions to the governor and council of Albe- 
marle County: North Carolina Records, i. 181. 

1 67 1. Proprietary instructions to the governor and council of Ashley 
River: Rivers, Sketch of the History of South Carolina, 366. 

1674. Proprietary instructions to Andrew Percivall, governor of a new 
plantation on the Edisto River : Rivers, Sketch of the History of South 
Carolina, 387. 



LIST OF COMMISSIONS AND INSTRUCTIONS. 267 

1674. Proprietary commission to Philip Carteret, governor, and to the 
council of New Jersey : Learning and Spicer, Grants, Concessions, etc., 5S. 

1674. Proprietary instructions to Philip Carteret, governor, and to the 
council of New Jersey : New Jersey Documents, i. 167. 

1674. Proprietary commission to Edmund Andros, governor of New 
York : New York Documents, iii. 215 ; New Jersey Documents, i. 156. 

1674. Proprietary instructions to Edmund Andros, governor of New 
York: New York Documents, iii. 216. 

1675. Royal commission to Thomas, Lord Culpeper, governor of Vir- 
ginia : Hening, Statutes, ii. 565. 

1676. Proprietary commission to Thomas Eastchurch, governor of 
Albemarle County : North Carolina Records, i. 232. 

[1676.] Proprietary instructions to the governor and council of Albe- 
marle County: North Carolina Records, i. 230. 

1679. Proprietary instructions to John Harvey, president, and to the 
council of Albemarle County: North Carolina Records, i. 235. 

1679. Royal commission to John Cutt [or Cutts], president, and to the 
council of New Hampshire: New Hampshire Provincial Papers, i. 373; 
also prefixed to Acts and Laws of New Hampshire (1771). 

[16S1.] Proprietary instructions to Henry Wilkinson, governor, and to 
the council of Albemarle County : North Carolina Records, i. 333. 

1 68 1. Proprietary commission to William Markham, governor of Penn- 
sylvania : Charter a?id Laws of Pennsylvania, 470. 

1682. Royal commission to Edward Cranfield, governor of New Hamp- 
shire : New Hampshire Provi?icial Papers, i. 433. 

[1682.] Royal instructions to Edward Cranfield, governor of New Hamp- 
shire : New Hampshire Provincial Papers, i. 443. 

1682. Proprietary commission to Thomas Dongan, governor of New 
York: New York Documents, iii. 328. 

1683. Proprietary commission to Robert Barclay, governor of East 
New Jersey : Smith, History of New Jersey, 166. 

1683. Proprietary commission to Gawen Lawrie, deputy-governor of 
East New Jersey : New Jersey Documents, i. 423. 

1683. Proprietary instructions to Gawen Lawrie, deputy-governor of 
East New Jersey : New Jersey Documents, i. 426. 

16S3. Proprietary instructions to Thomas Dongan, governor of New 
York: New York Documents, iii. 331. 

[1684.] Royal commission to Thomas, Lord Culpeper, governor of Vir- 
ginia : Calendar of Virginia State Papers, i. 14. 

16S6. Royal commission to Thomas Dongan, governor of New York: 
New York Documents, iii. 377. 

1686. Royal instructions to Thomas Dongan, governor of New York: 
New York Documents, iii. 369. 

1686. Royal commission to Sir Edmund Andros, governor of New 
England: Force, Tracts, iv. No. 8. 



268 APPENDIX B. 

1688. Royal commission to Sir Edmund Andros, governor of New 
England : New York Documents, iii. 537. 

1688. Royal instructions to Sir Edmund Andros, governor of New- 
England : New York Documents, iii. 543. 

1689. Proprietary commission to Philip Ludwell, governor of Carolina 
north and east of Cape Fear : North Carolina Records, i. 360. 

1689. Proprietary instructions to Philip Ludwell, governor of Carolina 
north and east of Cape Fear : North Carolina Records, i. 362. 

1689. Proprietary instructions to John Blackwell, governor of Penn- 
sylvania : Pennsylvania Records, i. 318. 

1690. Proprietary commission to Lionel Copley, governor of Maryland: 
Maryland Archives, viii. 200. [Draft.] 

[1690.] Royal commission to Henry Slough ter, governor of New York : 
New York Documents, iii. 623. [Draft.] 

1690. Royal instructions to Henry Sloughter, governor of New York : 
New York Documents, iii. 685. 

1691. Proprietary commission to Philip Ludwell, governor of Carolina: 
North Carolina Records, i. 373. 

1691. Proprietary instructions to Philip Ludwell, governor of Carolina: 
North Carolina Records, i. 373 ; Rivers, Chapter in the History of South 
Carolina', 59. 

1 69 1. Royal commission to Lionel Copley, governor of Maryland : 
Maryland Archives, viii. 263. 

1691. Royal instructions to Lionel Copley, governor of Maryland: 
Maryland Archives, viii. 271. 

1692. Royal commission to Samuel Allen, governor of New Hampshire : 
New Hampshire Provincial Papers, ii. 57. 

1692. Royal instructions to Samuel Allen, governor of New Hampshire : 
New Hampshire Provincial Papers, ii. 63. 

1692. Proprietary commission to Andrew Hamilton, governor of West 
New Jersey : New Jersey Documents, ii. 87. 

1692. Royal commission to Benjamin Fletcher, governor of New York : 
New York Documents, iii. 827; Pennsylvania Records, i. 357. 

1692. Royal instructions to Benjamin Fletcher, governor of New York : 
New York Documents, iii. 818. 

1692. Royal commission to Benjamin Fletcher, governor of Penn- 
sylvania : Pennsylvania Records, i. 352 ; also drafts in New. York Docu- 
ments, iii. 856, and Charter and Laws of Pennsylvania, 539. 

1692. Royal instructions to Benjamin Fletcher, governor of Penn- 
sylvania: New York Docufnents, iii. 861. 

1694. Proprietary commission to John Archdale, governor of Carolina : 
North Carolina Records, i. 389. 

1694. Proprietary commission to William Markham, governor of Penn- 
sylvania : Pennsylvafiia Records, i. 474 ; Charter and Laws of Penn- 
sylvania, 5$8. 



LIST OF COMMISSIONS AND INSTRUCTIONS. 269 

1697. Proprietary commission to Jeremiah Basse, governor of West 
New Jersey : New Jersey Documents, ii. 143. [Draft] 

1697. Royal commission to Richard, Earl of Bellomont, governor of 
New Hampshire: New Hampshire Provincial Papers, ii. 305. 

1697. Royal commission to Richard, Earl of Bellomont, governor of 
New York : New York Documents, iv. 266. 

1697. Royal instructions to Richard, Earl of Bellomont, governor of 
New York : New York Documents, iv. 284. 

[169S?] Royal instructions to Francis Nicholson, governor of Virginia: 
Virginia Magazine of History and Biography, iv. 49. 

169S. Proprietary instructions to Jeremiah Basse, governor of East 
New Jersey : New Jersey Documents, ii. 209. 

1699. Proprietary commission to Andrew Hamilton, governor of West 
New Jersey: New Jersey Documents, ii. 301. 

1702. Royal instructions to Joseph Dudley, governor of Massachusetts: 
Massachusetts Historical Society, Collections, 3rd Series, ix. 101. 

1702. Royal commission to Joseph Dudley, governor of New Hamp- 
shire : A r ew Hampshire Provincial Papers, ii. 366. 

1702. Royal commission to Edward, Lord Cornbury, governor of New 
Jersey : Learning and Spicer, Grants, Concessions, etc., 647; New Jersey 
Documents, ii. 4S9; Smith, History of New Jersey, 220 ; Field, Provincial 
Courts of New Jersey, Appendix B. 

1702. Royal instructions to Edward, Lord Cornbury, governor of New 
Jersey : Learning and Spicer, Grants, Concessions, etc., 619 ; New Jersey 
Documents, ii. 506 ; Smith, History of New Jersey, 230 ; Field, Provincial 
Courts of New Jersey, Appendix B. 

1702. Proprietary commission to Sir Nathaniell Johnson, governor of 
South and North Carolina : North Caroli?ia Records, i. 554. 

1702. Proprietary instructions to Sir Nathaniell Johnson, governor of 
South and North Carolina: N'orth Carolina Records, i. 555. 

1708. Proprietary commission to Edward Tynte, governor of North and 
South Carolina: North Carolina Records, i. 694. 

1709. Royal commission to Robert Hunter, governor of New York: 
Nero York Documents, v. 92. [Draft.] 

1709. Royal instructions to Robert Hunter, governor of New York: 
New York Documents, v. 124. [Draft.] 

1 712. Proprietary instructions to Edward Hyde, governor of North 
Carolina: North Caroli?ia Records, i. 844. 

1715. Royal commission to Robert Hunter, governor of New York: 
New York Documents, v. 391. [Draft.] 

171 7. Royal commission to John Wentworth, lieutenant-governor of 
New Hampshire: New Hampshire Provincial Papers, fi. 712. 

1 7 19. Proprietary instructions to William Keith, governor of Penn- 
sylvania: Pennsylva?iia Records, iii. 63. 

1720. Royal instructions to Francis Nicholson, governor of South 
Carolina : Rivers, Chapter in the History of South Carolina, 68. 



2JO APPENDIX B. 

1727. Royal commission to John Montgomery, governor of New York: 
New York Documents, v. 834. [Draft.] 

1730. Royal commission to George Burrington, governor of North 
Carolina: North Carolina Records, iii. 66. [Draft.] 

1730. Royal instructions to George Burrington, governor of North 
Carolina: North Carolina Records, iii. 90. [Draft.} 

1738. Royal commission to Lewis Morris, governor of New Jersey: 
New Jersey Documents, vi. 2. [Draft.] 

1738. Royal instructions to Lewis Morris, governor of New Jersey: 
New Jersey Documents, vi. 15. [Draft] 

1 741. Royal commission to George Clinton, governor of New York: 
New York Documents, vi. 189. [Draft.] 

1753. Royal commission to Sir Danvers Osborn, governor of New York: 
Smith, History of New York, 297. 

1754. Royal instructions to Arthur Dobbs, governor of North Carolina: 
North Carolina Records, v. 1107. [Draft.] 

1758. Royal commission to Francis Bernard, governor of New Jersey : 
New Jersey Documents, ix. 23. [Draft.} 

1758. Royal instructions to Francis Bernard, governor of New Jersey : 
New Jersey Docu?nents, ix. 40. [Draft.] 

1759. • Proprietary commission to James Hamilton, governor of Penn- 
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1760. Royal commission to Benning Wentworth, governor of New 
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1 761. Royal commission to Arthur Dobbs, governor of North Carolina: 
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1766. Royal commission to John Wentworth, governor of New Hamp- 
shire : prefixed to Acts and Laws of New Hampshire (1771). 

1771. Royal instructions to John, Earl of Dunmore, governor of Vir- 
ginia : Aspinwall Papers (Massachusetts Historical Society, Collections^ 
4th Series, x.), 630. 



APPENDIX C. 

LIST OF AUTHORITIES CITED. 

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[Beverley, Robert.] The History of Virginia, in Four Parts. By a 
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272 APPENDIX B. 

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LIST OF AUTHORITIES CITED. 273 

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18 



274 APPENDIX C. 

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Massachusetts Historical Society. Collections. 4th Series, ii. 
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New Jersey. Documents relating to the Colonial History of the State 



LIST OF AUTHORITIES CITED. 27$ 

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278 APPENDIX C. 

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INDEX. 



Accounts, inspection of, 121. 

Admiralty Courts, governor's relation to, 
106. 

Admiralty officers, friction with, 12. 

Agents, colonial, influence of, 48, 50-51, 
86, 165, 202. 

Albemarle, Lord, titular governor of Vir- 
ginia, receipts, 63. 

Andros, Sir Edmund, commission as gov- 
ernor of New England in 16S6, 16; 
commission of 16S8, 17, 29, 52 ; as gov- 
ernor of New York recommends an 
assembly, 38 ; governor of Virginia, 129. 

Anne, Queen, act fixing governor's tenure, 
50 ; provision as to government in gov- 
ernor's absence, 56 ; confirms reversal 
of act of attainder against Bayard, 
200. 

Appeal, to Privy Council, 6, 140-141 ; to 
governor and council, 140-141. 

Appointments. See Crown, Patronage, 
Provincial Governor (powers). 

Archbishop of Canterbury, jurisdiction 
in the colonies, 128. See also Church 
of England. 

Assembly, first representative, 36 ; re- 
stricts governor's legislative power, 36 ; 
gradual establishment, 36-39 ; denies 
council's right to initiate legislation, 40 ; 
composition, 41-42 ; right of Maryland 
governor to issue special writs to re- 
presentatives, 41 ; separation into two 
houses, 42 ; gives presents to governor, 
62; jealous of council, 88, 122; finan- 
cial control by, 121, 122, 180 seq. ; gov- 
ernor's relations to, 145-195; governor's 
power over, 145-165; right of sum- 
mons, 145-149; speaker, 149-151 ; ad- 
journment, prorogation, dissolution, 
151-157; exclusion of office-holders 



from, 158-159; power over the governor, 
166-176 ; use of salary grants to extort 
legislation, 173-176; encroachments on 
the governor, 177-195; appoints finan- 
cial officers, 182-188 ; assumes control 
of military affairs, 188-192 ; interferes 
with external relations, 192-193; policy 
of, 194-195. See also Council, Provin- 
cial Governor (powers), and colonies 
by name. 

Assizes, court of, in New York, petitions 
for Assembly, 38. 

Attorney-general, subject to colonial gov- 
ernor, 139. 

Baltimore, Cecilius, Lord, charter to, 
8-9 ; Charles, Lord, conflict with royal 
customs service, 12; religious faith, 17- 
18, 19. 

Barbadoes, suit against governor of, 197. 

Bayard, Nicholas, trial for treason, 143, 
199-200. 

Belcher, Jonathan, governor of Massa- 
chusetts and New Hampshire, succeeds 
Burnett, 51; accused of partiality, 54; 
removed 54 ; disagreement with lieu- 
tenant-governor, 57 ; vetoes election of 
councillors, 77 ; dislike of Phips, 78 ; 
claims right to nominate officers, 112; 
governor of New Jersey, 112 ; removal 
of judges, 143 ; claims right to judge of 
elections, 149 ; abuse of power of pro- 
rogation, 152, 153; salary, 172. 

Bellomont, Richard, Lord, governor of 
Massachusetts and New York, 43, 52, 
170; differences with council, 89 ; suit 
against, 197. 

Benefices, right of collation to, reserved 
to governor, 128-132 passim. See also 
Provincial Governor (powers). 



280 



BERKELEY— CHANCERY. 



Berkeley, John, Lord, proprietor of New- 
Jersey, 6, 7. 

Berkeley, Sir William, governor of Vir- 
ginia, instructions, 37 ; abuse of justice, 
143; text of commission and instruc- 
tions, 214 seq. 

Bernard, Francis, governor of New Jersey, 
instructions, 65-66, 73, 81, 186; com- 
mission, 81 ; text of commission and 
instructions, 226 seq. 

Biennial acts, 155. 

Bishop of London, jurisdiction in the 
colonies, 128 seq. See also Church of 
England. 

Blackstone, William, on foreign relations, 
106; on right of pardon, 124; on the 
king's ecclesiastical prerogative, 128. 

Blair, Commissary James, altercations 
with governors, 129, 130. 

Board of Trade, excludes governor from 
legislative council, 43 ; governors ap- 
pointed on recommendation of, 46 ; com- 
plains of royal governors, 66-67, in, 
148; origin and powers, 69-71, 72, 74, 
75, 81 ; on personal accountability of 
governors, 85 ; commission and instruc- 
tions drafted by, 94; on fees, 119, 120; 
criticises New Jersey militia act of 1704, 
121 ; on amendment of money bills, 
123; declines to interfere in Shute's 
censorship of the press, 127 ; on tenure 
of judicial officers, 135-137 ; censures 
Cornbury, 149; on triennial and sep- 
tennial acts, 156-157; on salaries of 
governors, 169-172; on encroachments 
of assemblies, 193-194 ; report to, 197. 
See also Crown. 

Bonds for observance of instructions. 
See Instructions. 

Boston Gazette, publishes articles reflecting 
on the governor, 201. 

Boston people, spirit of, 179. 

" Boston principles," 143. 

Bowdoin, James, leader of Massachusetts 
council, 90. 

British government, conflict with France, 
17; acts of Parliament to be enforced by 
colonial governors, 55, 69, 97 ; colonial 
administration, 69-71 ; English judi- 
ciary, 133 ; restrictions on colonial legis- 
lation, 162-163; jurisdiction of King's 
Bench over colonial governors, 196-197. 
See also Board of Trade. 



Burgess, Eliseus, sold his appointment as 
. governor, 47. 

Burgesses, House of. See Virginia As- 
sembly. 

Burnaby, Andrew, Travels, 63. 

Burnet, William, governor of New York 
and Massachusetts, character, 49 ; suc- 
ceeded by Belcher, 51 ; controversy with 
assembly on salary questions, 118, 171- 
172. 

Burrington, George, governor of North 
Carolina, claims seat in the upper 
House, 44 ; dispute with assembly as 
to arrangement of electoral districts, 
147 ; report concerning treasurer, 185 ; 
attacked, 199. 

Byllinge, Edward, proprietor of West 
Jersey, 7-8. 

Byrd, William, question of suspension 
from council, 75. 



Calvert, Charles, governor of Maryland, 
commission, 125. 

Calvert, Leonard, governor of Maryland, 
commission, 25, 125. 

Carolina, charter, 5, 9, 32, 35 ; proprietary 
form of government, 6; popular consti- 
tution, 7, 10 ; " Concessions " of 1665, 
10,26; "Fundamental Constitutions," 
10, 26, 40, 41 ; friction with revenue 
officers, 12; opposition to proprietary 
veto, 14 ; prosecution of quo warranto 
writ against, 17 ; legislation and taxa- 
tion to be with consent of freemen, 32 ; 
right of proprietor to issue ordinances, 
35, 39 ; initiative in legislation claimed 
for governor and council, 40-41 ; gov- 
ernor a member of the assembly, 41 ; 
separation of assembly into two houses, 
42 ; church of England in, 130. See also 
North Carolina, Proprietary Govern- 
ment, South Carolina. 

Carteret, Sir George, proprietor of New 
Jersey, 6, 7. 

Censorship. See Press. 

Chalmers, George, on the Virginia coun- 
cil, 86 ; on the Massachusetts policy of 
temporary salary grants, 170, 179; on 
Governor Denny, 174 ; on Treasurer 
John Starkey, 185 ; on French wars, 
192 ; on New York government, 194. 

Chancery Courts. See Courts, Equity. 



CHARLES — CULPEPER. 



28l 



Charles I., attitude toward Virginia, 3, 

36, 37- 
Charles II., attack on colonial charters, 

16, 21 ; navigation acts, 68, 97. 
Charter government. See ch. i. passim. 
" Charter of Privileges " in New York, 38. 
Charters, proprietary; provisions of, 8-9, 

32, 91-92 ; colonial, attacks on, 15 scq. ; 
of incorporation, right of governors to 
issue, 126. See also colonies by name. 

Church of England, in the colonies, 128- 
132. 

Clarke, George, lieutenant-governor of 
New York, passes triennial act in re- 
turn for his salary, 173. 

Clinton, George, governor of New York, 
complains of assembly, 101. 

Coddington, William, patent to, 5. 

Colden, Cadwallader, lieutenant-governor 
of New York, 136. 

Collation to benefices. See Benefices. 

Commission, governor's, cost, 47 ; dura- 
tion, 49, 50 ; analogy to king's preroga- 
tive, 93 ; features, 93-96. See also 
Provincial Governor (powers). 

Commissioners, appointment by assembly, 
177-195 passim. 

Connecticut, elective government, 5, 6; 
prosecution against, 17; royal control, 

17, 18, 22; militia under command of 
New York governor, 103. See also 
New England, New Haven. 

Constitution of Virginia, proposition as to 
governor's salary in, 175-176; of the 
United States as to president's salary 
176. 

Constitutions, State, influence of colonial 
practice on, 194, 195. 

Copley, Sir Lionel, governor of Maryland, 
19. 

Cornbury, Edward, Lord, governor of 
New York and New Jersey, complaint 
against the charter governments, 21- 
22 ; lack of principle, 47, 122, 184 ; dis- 
agreement with lieutenant-governor, 
57 ; ordered to reinstate suspended 
councillor, 75 ; receives instructions as 
to right of appeal, 140 ; claims right to 
judge of elections, 149; objects to as- 
sembly's choice of speaker, 150; on 
republican ideas in New York and 
New Jersey, 179; Bayard's address to, 
199. 



Cosby, William, governor of New York, 
claims seat in the upper house, 43 ; 
brings suit before Supreme Court, 143 ; 
removal of Chief-Justice Morris, 143, 
200; action in Zenger trial, 143-144, 
200-201 ; on spread of Boston prin- 
ciples, 179. 

Council, governor's, organization, appoint- 
ment, etc., 23-31, 72-90 ; as a legislative 
upper house, 42; governor claims a 
seat in, 42-44; assumption of govern- 
ment in governor's absence, 56-59 ; 
qualifications of members, 73; removal 
and suspension of members, 74-75 ; 
points of difference in Pennsylvania and 
Massachusetts, 75-78 ; ex-officio mem- 
bers, 78; financial compensation, 78- 
79 ; times of meeting, 79 ; quorum, 79 ; 
functions, 80 seq. ; power as an advisory 
body, 80-85 5 control of governor's ac- 
tion, 85-87 ; conservatism, 87-90 ; as- 
sembly's jealousy of, 88, 122; as upper 
house denied the right to amend money 
bills, 88, 122-123; share in appointing 
power, 111-112. See also Governor 
and Council, Provincial Governor, and 
colonies by name. 

" Council for New fingland," 3-4. 

Courts, of justice, governor's power to 
erect, 39, 93, 137-139; °f admiralty, 
106; General Court of Virginia, 140; 
of appeal, 140, 141 ; chancery, 141-142 ; 
probate, 142 , governor's iufluence over 
Supreme Court, 143-144, 200-201 ; gov- 
ernor responsible only to King's Bench, 
196-197. See also Judiciary, Provin- 
cial Governor (powers). 

Cranfield, Edward, governor of New 
Hampshire, collection of taxes, 35, 

39' 

Crown, reserves veto on colonial legisla- 
tion, 6, 13, 162 ; reserves right to hear 
appeals, 6, 140-141 ; represented by 
the governor, 34, 92-133 passim; mili- 
tary prerogative, 98 ; prerogative in 
foreign relations, 106; appointing pow- 
er, no; right of pardon, 124; right to 
issue charters of incorporation, 126; 
ecclesiastical prerogative, 128; judicial 
prerogative, 133. See also Board of 
Trade, British Government. 

Culpeper, Thomas, Lord, governor of 
Virginia, instruction to, 37 ; Virginia 



282 



CUSTOMS— FEES. 



Assembly in his time, 42 ; lack of prin- 
ciple, 47 ; commission for life, 49. 

Customs, interference with collection of, 
12, 197 ; surveyor-generals of, members 
of the council, 78. 

Cutts, John, commission as " president " 
of New Hampshire, 6. 

De Lancey, James, chief-justice of New 
York, 200. 

Delaware, proprietary government in, 
attacked, 1 7 ; common executive with 
Pennsylvania, 52-53 ; law giving prop- 
erty of intestates to governor, 62 ; tenure 
of office in, 1 16 ; church of England not 
established in, 129 ; annual elections for 
assemblies, 145. See also Pennsylvania. 

Delaware, Thomas,Lord, governor of Vir- 
ginia, appointed, 23 ; commission, 32- 
33 ; text of commission to, 201. 

Denny, William, governor of Pennsyl- 
vania, violates instructions, 174. 

Deplorable State of New- England, 157. 

Dinwiddfe, Robert, lieutenant-governor of 
Virginia, income, 63; on the Pennsyl- 
vania militia law of 1755, 102; military 
activity, 105; financial prerogative in- 
vaded, 181. 

Dissolution, of assemblies, 153—157: See 
also Assembly, Provincial Governor 
(powers). 

Divorce. See Marriage. 

Dobbs, Arthur, governor of North Caro- 
lina, instructions, 96, 135, 138; removes 
opposition leader, in assembly, 115; re- 
ceives instruction as to fees, 120 ; finan- 
cial prerogative invaded, 181. 

Dongan, Thomas, governor of New York, 
instructions, 29 ; authorized to call an 
Assembly, 38 ; receives royal directions 
as to military affairs, 104. 

Douglass, governor of the Leeward Is- 
lands, 197. 

Douglass, William, on instability of gov- 
ernor's position, 50 ; on governor's 
equity jurisdiction, 141 ; on governor's 
power of prorogation, 152; cites cases 
of trial of governors, 197. 

Dudley, Joseph, governor of Massachu- 
setts and New Hampshire, commission 
with title of president, 16 ; complaint 
against the charter governments, 21 ; 
instructions of 1702,69; vetoes election 



of councillors, 77 ; on the character 
of the council, 89 ; vetoes election of 
speaker, 150; unable to secure perma- 
nent salary grants, 170. 

Dummer, Jeremiah, Defence of the New- 
England Charters, 22, 85. 

Durham, palatinate of, 8, 9. 

Dyer case, in New York, 38. 

East Jersey, given to Sir George Car- 
teret, 7 ; " Fundamental Constitutions," 
11, 28 ; prosecution against, 17 ; annual 
elections in, 155-156. See also New 
Jersey, West Jersey. 

Ecclesiastical powers. See Church of 
England, Crown, Provincial Governor 
(powers). 

Elections, for the assembly, 145-149; gov- 
ernor claims right to judge of, 149. See 
also Assembly, Council, Provincial Gov- 
ernor (powers), and colonies by name. 

Endicott, John, governor of Massachu- 
setts Bay, 4. 

England. See British Government. 

Equity, jurisdiction of the governor and 
council, 141-142. See also Courts, 
Governor and Council, Provincial Gov- 
ernor (powers). 

Everard, Richard, governor of North Ca- 
rolina, controversy with the council, 27. 

Executive, provincial, evolution of, 23-45 ; 
governor's appointment, tenure, etc., 46- 
64 ; governor as agent of home govern- 
ment, 65-71 ; governor's council, 72-90 ; 
governor's powers, 91-132 ; governor's 
relation to the judiciary, 133-144; in- 
fluence upon legislative branch, 145- 
165; power of assembly over, 166-176; 
powers assumed by assembly, 177-195; 
weakened during the later colonial pe- 
riod, 193 sea. See also Assembly, Gov- 
ernor and Council, Provincial Governor 
(powers). 

External relations. See Indians,. Provin- 
cial Governor (powers). 

Fabrtgas vs. Mostyn, case of, 196. 
Fauquier, Francis, governor of Virginia, 

85. 
Fees, regulation of,. by the governor, 39, 

117-121 ; as part of governor's income, 

60-61. See also Assembly, Provincial 

Governor (powers). 



FINANCE— INDIAN. 



283 



Finance, paper-money, S7, 88, 163; regu- 
lation of salaries and fees by the gov- 
ernor, 1 1 7- 1 21 ; governor's warrant for 
issuing money, 121 -123; usurpation of 
governor's powers by assembly, 124, 
1S0-18S. See also Assembly, Provin- 
cial Governor (powers), Treasurer. 

Fletcher, Benjamin, governor of New 
York and Pennsylvania, 19; as gover- 
nor of New York put in control of 
Connecticut militia, 103; governor of 
Pennsylvania, 104. 

Franklin, Benjamin, authorship of His- 
torical Review of the Constitution and 
Government of Pennsylvania wrongly 
ascribed to, 52 ; on salary question, 
175 ; as colonial agent, 202. 

French and Indian wars, constitutional 
effects of, 102, 188-192. See also War. 

George II., Delaware law in time of, 62 ; 
act relating to iron and steel factories, 
68. 

George III., act providing new oath as to 
duties, 69. 

Georgia, proprietary government, 22 ; 
royal government established, 22 ; or- 
ganization of assembly, 39 ; council 
as upper house, 44 ; governor's salary, 
59 ; militia law, 100 ; assembly unduly 
prorogued, 153; assembly dissolved 
prematurely, 154; appointment of trea- 
surer, 182. 

Gibson, Edmund, Bishop of London, col- 
onial jurisdiction, 128. 

Gilbert, Sir Humphrey, patent to, 1. 

Glen, James, governor of South Carolina, 
protests against exclusion from council, 
44 ; Description of South Carolina, 67 ; 
on the governor's powers, 98 ; nego- 
tiates with Indians, 108; on the govern- 
ment of the province, 187. 

Gookin, Charles, governor of Pennsyl- 
vania, complaint against assembly, 83. 

Gorges, Sir Ferdinand, urges royal gov- 
ernments in New England, 16. 

Governor, relations with council, 23-45, 
72-90; powers at first loosely defined, 
31-34; a member of the assembly, 41- 
44; personal accountability, 85. See 
also Council, Governor and Council, 
Proprietary Governor, Provincial Gov- 
ernor, and governors by name. 



Governor and council, relations of, 23-45, 
72-90; in Virginia, 23-25, 72, 86; in 
Maryland, 25 ; in Carolina, 26-28 ; in 
New Jersey, 28, 86; in New York, 28- 
29 ; in New Hampshire, 29 ; in Penn- 
sylvania, 29-31, 75 ; in Massachusetts, 
31,76-78; judicial powers, 32-36 pas- 
sim, 44-45 ; legislative powers, 32-45 
passim; power of prosecution, 139; 
power of decision in questions of mar- 
riage and divorce, 142. See also Coun- 
cil, Provincial Governor (powers). 

Grand Council, in Carolina, 26, 40. 

Hamilton, Andrew, speech in Zenger 
trial, 155, 197, 201 ; speaker of Penn- 
sylvania assembly, 188 ; on inadequacy 
of legal checks upon the governor, 197- 
198. 

Hamilton, James, governor of Pennsyl- 
vania, text of commission to, 261. 

Hardy, Josiah, governor of New Jersey, 
violates instructions, 95 ; removed, 136. 

Harvey, John, governor of Virginia, con- 
troversy with his council, 24. 

Holt, chief-justice, on proprietary gov- 
ernments, 18. 

Home government. See Board of Trade, 
British Government, Crown. 

Howard, Francis, Lord, governor of Vir- 
ginia, instruction to, regarding assem- 
bly, 37- 

Hunter, Robert, governor of New York 
and New Jersey, instructions, 81 ; com- 
plains of council, 86 ; acknowledges 
bargain in passage of acts, 164; re- 
quests settlement of salary, 169 ; on 
appointment of treasurer by the as- 
sembly, 184. 

Hutchinson, Thomas, on Governor Bello- 
mont of Massachusetts, 42, 43 ; char- 
acter as governor of Massachusetts, 49; 
on right of lieutenant-governor to sit in 
the council, 78 ; on colonial councils, 
85, 89-90 ; leader of Massachusetts 
council, 89-90 ; on the Massachusetts 
judiciary, 143 ; chief justice of Massa- 
chusetts, 201. 

Indian affairs, superintendent of, a mem- 
ber of the council, 78 ; appointment, 
108, 109 ; interference of the assembly 
in, 192-193. 



284 



INDIAN— MAINE. 



Indian commissioners, appointment of, 
187-188, 193. 

Indians, invasions in South Carolina, 15, 
20 ; Shirley's service with, 62 ; relations 
of colonies with, 107-110; governors' 
proclamations concerning, 160. See 
also French and Indian Wars. 

Instructions to governors, bond for ob- 
servance of, in proprietary governments, 
14, 196; features, 93-97 ; violation, 94- 
95, 163-165, 173-175 ; restricting co- 
lonial legislation, 162-165. See also 
Provincial Governor (powers), and gov- 
ernors by name. 

Intercolonial relations, 109, 192. See also 
Indians, Provincial Governor (powers). 



Jamaica assembly, resolutions of, on fi- 
nancial powers of the assembly, 182. 

James I. inaugurates royal government in 
Virginia, 3. 

James II., effect upon New York of his 
accession to the throne, 15 ; organizes 
royal government in Massachusetts, 16 ; 
Penn's relation with, 18 ; opposes re- 
presentation in New York, 38 ; policy 
of, 52. See also York, Duke of. 

Jefferson, Thomas, on the salary of the 
executive, 175-176. 

Jennings, Samuel, deputy-governor of 
West Jersey, 8 ; speaker of New Jer- 
sey assembly, 150. 

Jerseys. See East Jersey, New Jersey, 
West Jersey. 

Johnson, Robert, governor of South Caro- 
lina, adherence to instructions, 187. 

Johnston, Gabriel, governor of North 
Carolina, dissolves assembly, 154; ap- 
proves paper-money bill, 164. 

Judges. See Judiciary. 

Judiciary, consent of council required in 
appointment of officers, 81, 111-112, 134; 
governor's relation to, 133-144; English, 
133 ; tenure of office, 134-137 ; erection 
of courts, 137-139; prosecution, 139; 
governor's criminal jurisdiction, 140 ; 
appeal cases, 140-141 ; equity cases, 
141-142 ; minor functions, 142 ; gov- 
ernor's abuse of power, 143, 144 ; juris- 
diction of King's Bench over colonial 
governors, 196-197. See also Courts, 
Provincial Governor (powers). 



Keith, Sir William, governor of Pennsyl- 
vania, insubordination, 83-84 ; alliance 
with assembly, 87 ; salary obtained by 
system of bargain and sale, 174. 

King's Bench, colonial governors subject 
to jurisdiction of, 196-197. See also 
Courts, Judiciary. 

King's Province, included in royal gov- 
ernment of Massachusetts, 16. 

Land, grants of, in the colonies, 126. 

Leeward Islands, suit against governor of, 
197. 

Legislation, consent of freemen required 
in Maryland, Carolina, and Pennsylva- 
nia, 32, 34 ; power at first exercised 
by executive, 34-36; ordinances and 
proclamations, 34-39, 1 59-161 ; power 
transferred to assembly, 36-39; initia- 
tive claimed by governor, 39-41, 161 ; 
advice of council asked, 82-84 ; gov- j 
ernor's indirect influence, 145-159 ; gov- j 
ernor's right of recommendation, 161 ; 
governor's veto, 162 ; veto reserved by 
the crown, 162 ; certain acts not to be 
approved by the governor, 162-163 ; 
"legislative riders," 164; influence of 
salary grants on, 167-176. See also 
Assembly, Governor and Council, Pro- 
vincial Governor (powers), and colonies 
by name. 

Leisler rebellion, 38. 

Libel cases, t 43-1 44, 200-201. 

Liberty of speech and press. See Press, 
Speech. 

Lieutenant-governor, office sought as 
source of profit, 47 ; temporary suc- 
cessor of governor, 53, 55-58 ; power 
in Virginia, 58 ; sometimes member of 
council, 58, 78. 

Lloyd, John, asks appointment as lieu- 
tenant-governor of South Carolina, 47. 

London Company, 2, 3 ; Bishop of, see 
Bishop of London. 

Lovelace, John, Lord, governor of New 
York and New Jersey, 139. 

Lowther, governor of Barbadoes, 197. 

Maine, province of, included in royal 
government of Massachusetts, 16; re- 
presentation in Massachusetts council, 
76. 



MANSFIELD — MASS A CHUSETTS. 



2S5 



Mansfield, chief-justice, decision as to 
governor's legal accountability, 196. 

Markham, William, deputy-governor in 
Pennsylvania, 29. 

Marque and reprisal, letters of, 106. 

Marriage, licences in governor's disposal, 
12S, 129, 142; questions concerning, 
decided by governor and council, 142. 

Martial law, governor's power to exe- 
cute, 99. See also Provincial Governor 
(powers). 

Maryland, charter of, 1632, 5, 8, 32, 107, 
no, 125; feudal organization, 10; tax- 
ation and quit-rent troubles, n, 13; 
traffic in offices, 12 ; friction with reve- 
nue officers, 12 ; prosecution against, 
17 ; proceedings against charter of, 17- 
18; royal government in, 19; example 
of proprietary government, 21 ; early 
constitution of the executive, 25, 32, 
34-35 ; tenure of office in, 116; church 
of England in, 131 ; right of appeal in, 
140. See also Pennsylvania, Proprie- 
tary Government 

Maryland assembly, opposition to pro- 
prietary veto, 14; constitution of first, 
41 ; separation of the two houses, 42 ; 
makes permanent salary grants, 59 ; 
jealous of council, 88 ; political in- 
fluence of Pennsylvania on, 88, 178; 
jealous of governor's military powers, 
102; acts regulating fees, 118; contro- 
versy about proprietor's right of sum- 
mons, 146-147 ; proposal to influence 
by use of patronage, 158; exclusion of 
office-holders from, 158-159; assumes 
appointment of treasurer, 182-183 ; 
claims direction of military operations, 
190-191 ; legislation against seditious 
utterances, 198. 
Maryland, council, small at first, 25 ; 
supports the governor, 87 ; assembly 
jealous of, 88; with governor forms an 
ecclesiastical court, 131. 
Maryland governor, duties in early times, 
325 a member of the assembly, 41 ; use 
of proxies, 41 ; right to issue special 
writs, 41 ; salary, 59, t68 ; income of, 
63 ; complains that his recommenda- 
tions for the council have been disre- 
garded, 74 ; asks advice of council, 82 ; 
supported by council, 87 ; military ac 
tivity, 104-105 ; appointing power re- 



stricted by assembly, 115-116; regula- 
tion of fees by, 119; pardoning power, 
125; with council forms an ecclesias- 
tical court, 131 ; proclamation by, 160. 
See also Calvert, Copley, Sharpe. 

Maryland proprietor, personal complica- 
tions, 17-18; shares right of legisla- 
tion and taxation with freemen, 32, 34 ; 
right to issue ordinances, 34-35, 39; 
claims right to initiate legislation, 40 ; 
military powers, 99; authority in ex- 
ternal relations, 107; appointing power, 
no; corrupt use of patronage, 114; 
pardoning power, 125. See also Balti- 
more, Proprietors. 

Massachusetts, elective government, 5 ; 
first charter annulled, 16; royal gov- 
ernment organized, 16; constitution of 
the executive under the Province char- 
ter, 31, 76 ; combined with New Hamp- 
shire under one governor, 52-54, 57, 
152-153; charter of 1691, 76, 82, 91-92, 
99, no; censorship of the press in, 
127-128; "Boston principles," 143; 
political influence of, 178-180 ; political 
discussion in, restricted, 199. See also 
New England. 

Massachusetts Bay, included in royal gov- 
ernment of Massachusetts, 16; repre- 
sentation in Massachusetts council, 76. 
See also Massachusetts, New England. 

Massachusetts Bay Company, charter, 4. 

Massachusetts council assumes govern- 
ment in absence of governor, 56; local 
representation in, 76; constitution of, 
76-78; question as to lieutenant-gov- 
ernor's seat, 78; quorum, 79; claims 
right of nomination, 82, 112; advice 
asked of, 82, 84; conservatism, 88-90; 
shares governor's power in marriage 
and divorce cases, 142. 

Massachusetts General Court, election of 
councillors, 31 ; gifts to governors, 62; 
constitution of, 76 ; appointing power, 
no, 113, 183, 184; annual elections re- 
quired, 145 ; choice of speaker vetoed 
by governor, 150-151 ; dissolution, 153; 
distribution of patronage to members 
of, T57 ; withholds salaries, 173; ap- 
points committee of war, 178 ; financial 
encroachments, 181 ; assumes direction 
of military operations, 189-192; en- 
croachments in Indian affairs, 192-193; 



286 



MASSACHUSETTS— NEW JERSEY. 



extent of usurpation upon executive, 
193-194. 

Massachusetts Government Act, 90. 

Massachusetts governor, question as to 
seat in the upper house, 43 ; colonists 
appointed to chair, 48 ; average tenure, 
51; inauguration, 54; presents to, 62; 
income, 63 ; military powers, 99 ; mili- 
tary authority in other colonies, 103; 
military activity, 105 ; declaration of 
war by, 108 ; negotiations with the In- 
dians, 108; appointing power, 110-113 
passim ; jurisdiction in marriage and 
divorce cases, 142; power of proroga- 
tion and dissolution, 152 ; proclamation 
by, 160 ; controversy as to salary of, 
170-173'; suit against, 197; alleged libels 
on, 201. See also Belcher, Bellomont, 
Burnet, Dudley, Phips, Shirley, Shute. 

Military powers. See Crown, Provincial 
Governor (powers). 

Militia laws, 100-105 passim. See also 
colonies by name. 

Ministers, presentation and induction of, 
128-132. See also Church of England, 
Provincial Governor (powers). 

Money-bills, council not to amend, 88, 122- 
123. See also Finance. 

Montgomerie, John, governor of New 
York and New Jersey, 118, 157. 

Morris, Lewis, governor of New Jersey, 
appointment, 48, 54; character, 49; 
anxious about position, 50; reinstated 
in council, 75 ; advances speaker of as- 
sembly, 115; as chief justice of New 
York removed by Cosby, 143, 200; on 
dependence of governors, 173-174; on 
New England influence, 178. 

Moseley, Edward, speaker of North Caro- 
lina assembly, 185. 

Navigation Acts, a form of parliamen- 
tary control in the colonies, 12; gov- 
ernors required to enforce, 22, 68, 69, 
97-98. See also Charles II. 

Newcastle, Duke of, colonial patronage 
of, 47. 

New England, early governments, 3-5 ; 
seat of elective form of government, 7 ; 
Gorges' attempt to establish royal gov- 
ernment in, 16 ; royal commissions in 
1686, 16; commission to Andros in 
1688, 17, 29, 38, 52 ; church of England 



not established in, 129 ; salary question, 
170; political influence, 177-180. See 
also Connecticut, Massachusetts, New 
Hampshire, New Jersey, New York, 
Rhode Island. 

New Hampshire, royal government in, 6 ; 
included in royal government with 
Massachusetts, 16; early constitution 
of the executive, 29, 35-36, 39, 41 ; com- 
bined with Massachusetts under one 
governor, 52-54, 57, 152, 153; separate 
government, 54 ; militia under com- 
mand of Massachusetts governor, 103 ; 
records, 178. See also Massachusetts. 

New Hampshire assembly, separation of 
the two houses, 42; Governor Went- 
worth's address to, 67 ; controversy 
about the right of summons, 147 ; choice 
of speaker vetoed by governor, 151 ; 
governor refuses to dissolve, 155; tri- 
ennial acts, 156; resents governor's in- 
terference in legislation, 161 ; refuses 
judicial salaries, 164 ; financial encroach- 
ments, 181 ; interference in military 
affairs, 190, 191. 

New Hampshire council, local represen- 
tation in, 73 ; controversy with gov- 
ernor as to appointments, 112; shares 
governor's power in marriage and di- 
vorce cases, 142 ; ordinance issued by, 
160. 

New Hampshire governor, colonists ap- 
pointed to post, 48 ; tenure, 51 ; oath 
required of, 54 ; present to, 62 ; dec- 
laration of war by, 108 ; negotiations 
with the Indians, 108 ; controversy 
with council as to appointments, 112 ; 
patronage of, 113; regulation of fees 
by, 119, 120; jurisdiction in marriage 
and divorce cases, 142 ; vetoes choice 
of speaker, 151 ; violates instructions, 
165 ; salary, 173 ; retains appointment 
of treasurer, 182. See also Belcher, 
Burnet, Cranfield, Dudley. 

New Haven, elective government, 5, 6„ 
See also Connecticut, New England. 

New Jersey, grant of by the Duke pf 
York, 6 ; division of, 7 ; " concessions," 
10, 28; friction with revenue officers, 
12; petition for royal government, 15; 
included in Andros's commission for 
New England, 17, 52 ; royal control jus- 
tified, 18 ; royal government established, 



NEW JERSEY— NORTH CAROLINA. 



2S7 



19-20 ; early development of the exec- 
utive, 2$ ; combined with New York 
under one governor, 52-54, 57 ; separate 
government, 54 ; Quaker influence in, 
101 ; church of England not established 
in, 129; courts, 137, 139; political in- 
fluence of Pennsylvania and New Eng- 
land in, 178, 179. See also East Jersey, 
West Jersey. 

New Jersey assembly, act regulating ten- 
ure of offices, 116; regulation of fees by, 
119-120; militia act of 1704, 121 ; de- 
nies right of council to amend money 
bills, 123 ; attempts to control judicial 
tenure, 135-136; power in apportion- 
ment of representatives, 148; choice of 
speaker disapproved by governor, 150; 
triennial bills, 156, 157 ; appoints exec- 
utive officers, 1S6 ; interferes in military 
affairs, 190; statute against seditious 
utterances, 199. 

New Jersey council, local representation 
in, 73 ; holds quarterly meetings, 79 ; 
independent, 86 ; controversy with gov- 
ernor as to appointments, 112. 

New Jersey governor, claims seat in the 
upper House, 43 ; colonist chosen as, 
48 ; fees of, 61 ; complains of council's 
obstinacy, 86 ; violates instructions, 94- 
95 ; controversy with council as to ap- 
pointments, 112 ; political use of patron- 
age, 115; appointing power restricted, 
1 1 5-1 16; regulation of fees by, 119; 
right to apportion representatives, 147- 
148; refuses to swear representatives, 
149 ; objects to speaker of assembly, 
150; ordinance issued by, 160; salary, 
173-174; retains appointment of treas- 
urer, 182. See also Bernard, Comb ury, 
Hardy, Hunter, Morris. 

New Netherland, passes from Dutch, 5, 
91 ; "Articles of Capitulation," 91. See 
also New York. 

New York, charter of 1664, 5, 9, 28, 32 ; 
royal government established, 15; in- 
cluded in Andros's commission for New 
England, 17, 38, 52; early constitution 
of the executive, 28, 33-39 passim ; be- 
ginning of representation in, 38, 39 ; 
Leisler rebellion, 38 ; combined with 
New Jersey under one governor, 52-54, 
57 ; corrupt administration of royal 
lands in, 126; church of England in, 



129-130; Zenger trial, 143-144, 200- 
201 ; New England influence in, 178- 
1S0. 

New York assembly, neglects to pass mi- 
litia law, 101 ; contest over regulation 
of official salaries, 118; suspects integ- 
rity of the executive, 122; denies right 
of council to amend money bills, 122- 
123 ; attempts to control judicial tenure, 
135-136 ; attacks court of chancery, 
138; triennial and septennial acts, 156; 
corrupted by official patronage, 158; 
act disqualifying judicial officers, 159; 
threatens to withhold supplies, 164 ; 
encroachments on financial powers of 
governor, 180 ; assumes appointment 
of treasurer, 184 ; appoints executive 
officers, 186 ; interferes in military af- 
fairs, 190; extent of usurpation, 194. 

New York council, shares governor's ap- 
pointing power, 81. 

New York governor, claims seat in the 
upper House, 43 ; income, 60, 63 ; de- 
pendent on assembly, 63 ; appointing 
power restricted, 81, 116-117 ; in com- 
mand of Connecticut militia, 103 ; con- 
test with assembly over regulation of 
official salaries, 118; regulation of fees 
by, 119; corrupt administration of 
royal lands, 126; subject to ecclesias- 
tical jurisdiction of Archbishop of Can- 
terbury, 128 ; equity jurisdiction of, 
142 ; undue influence on the courts, 
143 ; attempt to curb freedom of press, 
143-144, 200-201 ; undue prorogation 
of assembly, 1 53 ; barter in passage of 
acts, 164; controversy as to salary of, 
169-170; passes triennial act in return 
for salary, 173; suit against, 197. See 
also Burnet, Clinton, Cornbury, Cosby, 
Dongan, Fletcher, Hunter, Montgo- 
merie, Nicolls. 

Nicholson, Francis, governor of South 
Carolina, 21, 138, 179; governor of 
Virginia, 86, 129, 130. 

Nicolls, Richard, governor of New York, 
powers, 28, 33, 35. 

North Carolina, anarchy in, 15; royal 
government established, 21, 2S ; rec- 
ords, 47, 112; church of England in, 
1 30-131 ; courts, 138; influential po- 
sition of treasurer, 185. See also Caro- 
lina. 



288 



NORTH CAROLINA— PENNSYLVANIA. 



North Carolina assembly, militia laws, 
1 01 ; act regulating tenure of office, 1 16 ; 
acts regulating fees, 1 18-120; attempts 
to control judicial tenure, 135; contro- 
versy about governor's right of sum- 
mons, 147 ; dissolution of, 154; sessions 
of, 155 ; attempts to force governor's 
approval of legislation, 164 ; assumes 
appointment of treasurer, 183, 185 ; 
treasurer leader of, 185 ; seditious ut- 
terances punishable in, 199. 

North Carolina council organization, 27 ; 
appointing power, 27, 112; shares gov- 
ernor's right to suspend ministers, 131. 

North Carolina governor, controversy 
with council, 27 ; claims seat in the 
upper He use, 44; average tenure of, 
51 ; salary, 59, 167 ; abuse of patronage 
by, 115; right to regulate fees, 1 18-120; 
right to suspend ministers, 131 ; ap- 
proves choice of speaker, 150 ; dissolves 
unsatisfactory assembly, 154; ordinance 
by, recommended, 160 ; approves paper 
money bill, 165; money issued without 
warrant flf, 181. See also Burrington, 
Dobbs, Everard, Johnston. 

Northey, Edward, attorney-general, 66. 

Oakes, Thomas, controversy over his 

election as speaker in Massachusetts 

House, 150. 
Oaths, required of provincial governor, 

54-55 ; to be administered by governor 

to members of assembly, 149. 
Offices, sale of, in Maryland, 12. See 

also Patronage. 
Ordinances, issued by governors, 34-36, 

39> 159-161- See also governors by 

name. 

Palatinate, principle of, in proprietary 
charter, 8, 9. 

Palatine's Court, in Carolina, 10, 26. 

Paper money, council opposed to, 87,88; 
instructions concerning, 163; bills for, 
approved by governors, 165. See also 
Finance. 

Pardon, governor's right of, 124-126. 

Parliament, acts of, to be enforced by 
governors, 55, 69, 97. See also Board 
of Trade, British Government, Crown. 

Parliamentary system, possible develop- 
ment of, in the colonies, 185-186. 



Patronage, political use of, by governors, 
85, 1 1 4-1 1 5, 157-159; governor's right 
of, 110-113; reservations by the crown, 
113-114; restrictions imposed by as- 
sembly, 1 1 5-1 16 ; usurped by assembly, 
182-188. See also Provincial Governor 
(powers). 

Penn, Hannah, instructions by, 83, 84. 

Penn, William, founds Pennsylvania, 6; 
frames system of government, 11, 29- 
3°j 75 > regard for interests of colo- 
ny, 12 ; relations with James II., 18 ; 
authority, 107, no. See also Pennsyl- 
vania, Proprietor. 

Pennsylvania, charter of 1681, 6, 9, 32, 
1 10 ; tendency toward constitution-mak- 
ing, n ; taxation and quit-rent troubles, 
n, 13; "Frame of Government," n, 
29; friction with revenue officers, 12; 
royal government in, 19; example of 
proprietary government, 21 ; " Provin- 
cial Council," 29, 40; early constitution 
of the executive, 29-31 ; initiative in 
legislation claimed for the governor 
and council, 40 ; common executive with 
Delaware, 52-53 ; political influence, 
88, 178-179; Quaker influence in, 101 ; 
church of England not established in, 
129; courts, 138, 142. See also Mary- 
land, Proprietary Government. 

Pennsylvania assembly, no upper House 
in, 42, 59,83, 145 ; militia law, 102, 110- 
in ; attempts to control judicial ten- 
ure, 135 ; denies authority of chancery 
court, 142 ; annual elections for, 145 ; 
prorogation and dissolution, 151 ; con- 
trols governor by temporary grants, 
174 ; speaker issues orders on the treas- 
urer, 181 ; appoints executive officers, 
187-188 ; controls military operations, 
189 ; appoints Indian commissioners, 
193 ; extent of encroachment upon ex- 
ecutive, 193. 

Pennsylvania council, has no legislative 
powers, 42, 59, 83, 145; assumes gov- 
ernment in governor's absence, 56; 
constitution of, 75-76 ; holds weekly 
meetings, 79 ; advice of, required in 
legislation, 83-84, 145 ; opposed by gov- 
ernor, 83-84, 87. 

Pennsylvania governor,- military activity, 
104; appointing power limited, no- 
il 1, 116; pardoning power, 125; salary, 



PENNSYL VANIA — PRO VINCI AL. 



289 



174, 1S1. See also Denny, Fletcher, 
Gookin, Keith, Thomas. 

Pennsylvania proprietor, right of veto 
opposed, 13-14 ; personal complica- 
tions, 17-1S ; shares right of legislation 
and taxation with freemen, 32 ; military 
powers, 99 ; authority in external rela- 
tions, 107 ; appointing power, no; par- 
doning power, 125. See also Penn, 
William. 

Perquisites, of colonial governors, 61-62. 

" Personal unions," 52-54, 56-57. See 
also Massachusetts, New Hampshire, 
New Jersey, New York. 

Phips, Sir William, governor of Massa- 
chusetts, inauguration, 54; use of veto, 
77 ; as lieutenant-governor refused a 
seat in the council, 7S ; in command of 
Rhode Island and New Hampshire mi- 
litia, 103 ; salary, 170; suit against, 197. 

Piracy cases, governor's jurisdiction in, 
142. 

Plymouth, self-governing colony, 5; in- 
cluded in Andros's commission for New 
England, 16 ; representation in Massa- 
chusetts council, 76. 

Plymouth Company, 3. 

Pownall, Thomas, present to, 62 ; criti- 
cism of British colonial administration, 
70-71 ; on the governor's commission, 
95 ; on the erection of courts, 139; on 
courts of equity, 142 ; on instructions 
limiting colonial legislation, 163 ; pro- 
tests against encroachments of the as- 
sembly, 190. 

Presents, to governors from assemblies, 
62. 

President, of United States, salary, 176. 

President and council, in New England, 
see New England ; in New Hampshire, 
6, 29, 41-42 ; in Virginia, 23, 31-34. 

Press, censorship of, in Massachusetts, 
127-128 ; importance of liberty of, 198- 
202 ; attacked in New York, 200-201. 

Privy council, appeals to, 140-141. See 
also Appeal. 

Probate of wills, jurisdiction of the gov- 
ernor in, 128-129, 142. 

Proclamations. See Ordinances. 

Proprietary charter, constitutional provi- 
sions in individual colonies, 8-9 ; gen- 
eral characteristics, 32, 91-92. 

Proprietary colonies, right of the King 



to appoint governors in, 18. See also 
Carolina, Maryland, Pennsylvania. 

Proprietary government, in Virginia, 2-3 ; 
in Massachusetts Bay, 4; in New 
Hampshire, 5 (note), 6, 16; in Maryland, 
5, 6, 8-19 passim ; in Carolina, 5, 6, 9- 
21 passim ; in New York, 5, 9-17 pas- 
sim ; in Pennsylvania, 6, 9-21 passim; 
in New Jersey, 6-20 passim ; general 
characteristics of system, 8 sea. ; de- 
fects, 1 1— 1 5 ; transition to royal govern- 
ment easy, 15; royal attacks on, 15 
seq. ; bill for bringing into closer de- 
pendence upon crown, 21 ; royal con- 
trol, 22 ; system in Georgia, 22. See 
also Carolina, Maryland, Pennsylvania. 

Proprietary governor, distinguished from 
royal, 9-10 ; to be approved by the 
crown, 22. See also Proprietary Gov- 
ernment. 

Proprietors, right of veto opposed, 13- 
14; constitutional limitations upon, 32. 
See also Carolina, Maryland, Pennsyl- 
vania, Proprietary Government. 

Prorogation, governor's right of, 1 51-153. 
See also Assembly, Provincial Gov- 
ernor (powers), and colonies by name. 

Providence Plantations. See New Eng- 
land, Rhode Island. 

Provinces, consolidation of, 17, 52. 

Provincial governments, combination of, 

52-54. 
Provincial governor, vice-regal character, 
34, 92 ; claims initiative in legislation, 
39-41 ; claims seat in legislative coun- 
cil, 42-44 ; term defined, 45 ; appoint- 
ment, 46-49 ; cost of commission, 47 ; 
colonists appointed to seat, 48; tenure 
of office, 49-52 ; sometimes over two 
colonies, 52-54; inauguration, 54; oaths 
taken by, 54-55 ; residence required of, 
55 ; provisions for vacancies, 55-59 ; 
disagreements with lieutenant-gover- 
nor, 57 ; titular governors appointed, 57 ; 
sources of income, 59-64 ; salary, 59- 
60, 167-176; fees, 60-61; perquisites, 
61-62; agent of home government, 65- 
71; reports required of, 65-67; relation 
to other officers of the royal service, 
67 ; penalties imposed upon, 68-69 >' re " 
lations with British colonial adminis- 
tration, 69-71 ; relation to the council, 
72-90; personal accountability, 85 ; ex- 



19 



290 



PRO VINCI AL — SHERIFFS. 



ecutive powers, 91-132 ; relation to 
the judiciary, 133-144; relation to the 
assembly, 145-195; legal and political 
accountability, 196-202. See also Gov- 
ernor, Governor and Council, and gov- 
ernors by name. 

Provincial governor, powers, how defined, 
91 seq. ; commission and instructions, 
93-98; violation of instructions, 94-95, 
163-165, 173-175; instructions restrict- 
ing legislation, 162-165 ; military pow- 
ers, 98-105 ; encroachments of the 
assembly, 188-192 ; admiralty powers, 
105-106; external relations, 106-110; 
encroachments of the assembly, 192- 
193; appointing power, 72-78, 81-82, 
110-114, 134-137; corrupt use of, 114- 
115; legislation restricting, 115-117 ; 
assumed by the assembly, 181-188; 
financial powers, 1 17-124; assumed by 
the assembly, 180-182 ; pardoning pow- 
er, 124-126; keeper of the province 
seal, 126, 141 ; land grants, 126; issue of 
charters of incorporation, 126 ; right to 
establish markets and fairs, 127 ; censor- 
ship of the press, 127-128; ecclesiastical 
functions, 128-132; provisional author- 
ity in special cases, 132 ; power over ju- 
diciary, 133- 144 ; appointment of officers, 
111-112, 134-137; erection of courts, 
137-139; right of prosecution, 139; 
hearing of appeals, 140-141 ; equity 
jurisdiction, 141-142 ; minor functions, 
142-144 ; power over the assembly, 145- 
165; right of summons, 145-149; ad- 
ministration of oath to members, 149 ; 
veto on choice of speaker, 149-151 ; 
prorogation and dissolution, 1 51-157 ; 
use of patronage, 157-159 (see also 
Patronage) ; legislative powers, 159- 
165; issue of ordinances, 159-161 (see 
also Ordinances) ; right of recommen- 
dation, 161 ; veto, 162 ; instructions 
limiting legislation, 162-165. 

Proxies, use of, in Maryland assem- 
bly, 41. 

Purse, power of, 167-176. 

QUO WARRANTO process, against col- 
onial charters, 3, 16, 17. 

Raleigh, Sir Walter, patent to, 2. 
Randolph, Edward, criticism of proprie- 



tary governments, 12, 15 ; charges 
against colonial governors, 69. 

Receiver, royal, 168. See also Treasurer. 

Removal, of governors, 49-52, 68-69, 136 ; 
of councillors, 74-76 ; of judicial of- 
ficers, in seq., 134-137, 143; of mili- 
tary officers, 189, 191-192. See also 
Provincial Governor (powers). 

Reports, required of colonial governors, 
65-67. 

Representation, beginning of, in the colo- 
nies, 36 seq. 

Reprisal. See Marque. 

Reynolds, John, governor of Georgia, 1 54. 

Rhode Island, elective government, 5, 6 ; 
prosecution against, 17 ; royal control, 
17, 18, 22 ; militia under command of 
Massachusetts governor, 103. See also 
Connecticut, New England. 

Royal government, establishment of, 15 
seq. See also Proprietary Government 
and colonies by name. 

Royal governor, distinguished from pro- 
prietary, 9-10. See also Governor, Pro- 
vincial Governor. 

Salaries, of governors, 59-60; augmen- 
ted by fees and perquisites, 60-64; of 
councillors, 78-79; of provincial of- 
ficers, 117-118; controversy as to, 167- 
176. See also Fees, Perquisites. 

Seal, public, governor the keeper of, 126, 
141. 

Secretaries of state, governor's relations 
with, 70-71. 

Seditious utterances, restraint of, 198-199. 
See also Press, Speech. 

Separation of powers, principle of, disre- 
garded in the early colonial constitu- 
tions, 34 seq. See also Assembly. 

Septennial acts, 146, 155-157. 

Sewall, Samuel, diary of, 43, 89. 

Sharpe, Horatio, governor of Maryland, 
appointing power interfered with, 12; 
chafes under restraint, 13 ; character, 
49 ; considers financial advantages of a 
change to the government of New 
York, 63 ; recommendations for the 
council disregarded, 74; seeks to shift 
responsibility, 82 ; conflict with assem- 
bly, 102 ; military activity, 105. 

Sheriffs, appointment, in, 112, 115-116; 
functions of, in elections, 146-149; dis- 



SHIRLEY— VIRGINIA. 



291 



qualified from sitting in assembly, 15S- 
159. 

Shirley, William, governor of Massachu- 
setts, present to, 62 ; commander-in- 
chief in America, 105 ; requested to 
declare war, 108 ; instructions as to 
salary, 172 ; military encroachments of 
the assembly under, 1S9. 

Shute, Samuel, governor of Massachusetts 
and New Hampshire, disagreement 
with lieutenant-governor, 57 ; complaint 
against, in regard to appointment of 
councillors, 73 ; seeks advice from 
councillors, 82 ; declares war against 
Indians, 10S ; censorship of the press, 
127; vetoes choice of speaker, 150- 
151; dissolves assembly, 153; salary, 
170. 

Skene, John, proprietor's deputy in West 
Jersey, 8. 

South Carolina, opposition to proprietary 
veto, 14; petition for royal government, 
15; royal government established, 20- 
21, 27 ; office of lieutenant-governor 
sought, 47 ; church of England in, 131 ; 
courts, 138 ; influence of New England 
in, 179. See also Carolina. 

South Carolina assembly, complains of 
excessive fees, 61 ; act regulating fees, 
120; sessions of, 155; disqualifies office- 
holders for membership, 159; makes 
temporary salary grants, 173 ; en- 
croaches on governor's financial powers, 
181 ; assumes appointment of treasurer, 
183, 184; appoints executive officers, 
187 ; interferes in military and Indian 
affairs, 192-193; extent of usurpation 
upon executive, 193. 

South Carolina council, organization, 27; 
conservatism, 87. 

South Carolina governor, right to seat in 
the upper House denied, 44; negotia- 
tions with Indians, 108 ; patronage, 113- 
114; violates instructions, 165. See 
also Glen, Johnson, Nicholson. 

Spaniards, invade South Carolina, 1^, 20. 

Speaker, governor's approval of, 1 49-1 51 ; 
office joined with that of treasurer, 183- 
186. See also Assembly, Treasurer. 

Speech, freedom of, 198-202. See also 
Press. 

Spotswood, Alexander, governor of Virgi- 
nia, character, 49 ; power of suspension 



restricted, 75 ; complains of council, 

86; restive under restriction, 112. 
State governments, influence of colonial 

practice on, 194-195. 
Stokes, Anthony, on provincial councils, 

88 ; on the governor's patronage, 113. 
Stoughton, William, lieutenant-governor 

of Massachusetts, 78. 
Summons, governor's right of, 145-149. 
Supreme Court, governor's influence over, 

143-144, 200-201. 
11 Suspending clause," in colonial acts, 163, 

Taxation, on proprietary estates, 11, 13, 
82 ; and representation, 32-39 passim. 
See also Assembly, Legislation. 

Tenure of office, of governor, 49-52 ; of 
judicial officers, 134-137. See also 
Judiciary, Proprietary Governor. 

Thomas, George, governor of Pennsyl- 
vania, 174. 

Titular governors, in Virginia, 57. 

Townshend, Charles, Lord, secretary of 
state, 47. 

Treasurer, provincial, appointed by the 
assembly, 182-186; importance of, 185. 
See also Assembly, Receiver, Speaker. 

Treaties, governor's power to make, 108- 
109. 

Triennial acts, 146, 155-158. 

United States, constitution of, as to 
president's salary, 176. 

Vacancies, in the office of governor, pro- 
vision for, 55-59. See also Council, 
Lieutenant-governor. 

Vestries, encroachments on governor's 
prerogative, 1 30-131. 

Veto, reserved by the crown, 6, 13, 162 ; 
proprietor's right of, opposed, 13-14; 
governor's right of, in election of coun- 
cillors, 76-78 ; in choice of speaker, 
149-151 ; in legislation, 162-165. 

Vice-admiral, governor as, 105-106. 

Virginia, charter government, 2-3; royal 
government established, 3 ; elective gov- 
ernment, 6; early constitution of the 
executive, 23-25, 31-34 ; beginning of 
representation, 36-38; office of lieu- 
tenant-governor, 57-58 ; custom of 
publishing governor's instructions, 94 ; 
church of England in, 1 29-1 31 • draft 



292 



VIRGINIA —ZENGER. 



of constitution for, 175-176 ; treasurer- 
ship, 183-185. See also Proprietary 
Government. 

Virginia assembly, of 1619, first represen- 
tative body in America, 36 ; early con- 
stitution of, 41 ; separation into two 
Houses, 42 ; House of Burgesses asserts 
its right to " lay the levy," 42, 122 ; loses 
power over governor's salary, 59, 146, 
168 ; restricts governor's appointing 
power, 115, 116; act regulating fees, 
118; acts in interest of vestries, 130; 
infrequent sessions of, 146; long con- 
tinuance of, 154-155; septennial act, 
156; distribution of patronage among 
members of, 157 ; office-holders to re- 
sign seats in, 159; offices of speaker 
and treasurer combined, 183-185. 

Virginia Company, 2-3, 12, 23. 

Virginia council, shares with governor 
the initiative in legislation, 40, 41 ; ap- 
pointment of members, 72-73 ; salary 
of members, 78 ; powerful, 86 ; gover- 
nor resents interference of, 112; with 
governor forms an ecclesiastical court, 

Virginia General Court, 138, 140. See 
also Virginia council. 

Virginia governor, initiative in legislation 
claimed for, 40, 41 ; a member of the 
assembly, 41 ; colonists appointed to 
chair, 48 ; commission for life, 49 ; titu- 
lar and lieutenant-governor, 57-58, 63 ; 
income, 58, 59, 60, 63, 146, 168 ; at- 
tempts to shift responsibility, 85 ; mil- 
itary activity, 104-105 ; proposition 
to restrict, 112; extent of patronage, 
113; appointing power restricted, 115, 
116; regulation of salaries by, 118; 



regulation of fees by, 119; with coun- 
cil forms an ecclesiastical court, 131 ; 
ordinances issued by, 160 ; constitu- 
tional provision as to salary, 175-176; 
power of issuing warrants invaded, 18 r. 
See also Culpeper, Dinwiddie, Fau- 
quier, Harvey, Howard, Nicholson, 
Wyatt. 

War, French and Indian, 12, 13, 59, 102, 
160,188-192; Queen Anne's, 186. 

War and peace, prerogative of, how far 
granted to governors, 106-110, 132. 

Warrant, governor's, for issue of money, 
117, 121-123, 180-181. 

Wentworth, Benning, governor of New 
Hampshire, 48, 67, 161, 165, 181. 

Wentworth, John, lieutenant-governor of 
New Hampshire, text of commission, 
264. 

West Jersey, elective government in, 7-8 ; 
" Concessions," 8, 10 ; " Fundamen- 
tals/' 11; prosecution against, 17; an- 
nual elections in, 155-156 ; assembly 
adjourns itself, 156. See also East Jer- 
sey, New Jersey. 

William III., policy of, 17 ; statutes, 22, 
50, 68, 98. 

Wyatt, Sir Francis, governor of Virgi- 
nia, 3. 

York, Duke of, patent to, 5-6 ; accession 
to throne, 15 ; opposes representation 
in New York, 38. See also James II. 

Yorke, Charles, attorney-general, on ten- 
ure of judges' commissions, 95. 

Zenger, John Peter, trial of, 143-144, 
200-201. 



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